Delhi High Court
Nikhil Kumar Jain vs Air India Limited on 22 September, 2022
Author: Satish Chandra Sharma
Bench: Chief Justice, Subramonium Prasad
NEUTRAL CITATION NO: 2022/DHC/004161
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 22.09.2022
% LPA 345/2021 & CM APPL. 33480/2021
NIKHIL KUMAR JAIN ..... Appellant
Through: Mr. Akshat Bajpai, Ms. Ishanee
Sharma, Advocates
versus
AIR INDIA LIMITED ..... Respondent
Through: Ms. Shivani Sethi, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SATISH CHANDRA SHARMA, CJ. (ORAL)
1. The present Letters Patent Appeal is arising out of judgment dated
19.07.2021 passed by the learned Single Judge in W.P.(C.) No. 6695/2021.
2. The learned Single Judge has dismissed the Appellant's prayer for
quashing the letter dated 01.12.2020 by which the Respondent airline, Air
India Ltd. had refused to issue air passages to the Appellant herein, keeping
in view the Air India Employees' Passage Regulations, 2017, on account of
the Appellant having demitted the office in the Respondent airline.
3. The undisputed facts of the case reveal that the Appellant before this
Court is a former Indian Railway Services Officer of the 1987 batch. The
Appellant served the Indian Railways till 04.07.2012 and he was selected by
the Public Enterprises Selection Board (PESB) for the post of full time
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Director (Personnel) in the services of Air India Limited.
4. Air India Limited is a statutory body incorporated under the Air
Corporations Act, 1953 and is engaged in operating domestic and
international flights. Air India has been subsequently taken over by the Tata
Group.
5. The Appellant was shortlisted for the post of Director (Personnel)
National Hydro Power Corporation Ltd. (NHPC). He was informed by
Government of India, Ministry of Power on 15.12.2016 about his
appointment as Director (Personnel) NHPC and he was finally appointed as
Director (Personnel) NHPC on 01.02.2017. The Appellant demitted the
office of Director (Personnel), Air India Limited and joined NHPC as
Director (Personnel) on 07.02.2017.
6. The Air India Limited in its 51st Board meeting held on 12.03.2013
resolved to grant 24 free air passages to all full time Directors who had been
selected through a duly notified PESB Selection process.
7. The Air India Limited pursuant to its Board resolution issued an
Office Memorandum dated 30.09.2013 in the matter of grant of air passages
and it was categorically mentioned that the retired board level functionaries
are entitled for 24 air passages at the time of their superannuation.
8. On 16.12.2013, a clarification was issued by Air India Limited and it
was stated that in respect of ACC approved full time appointee Directors
who had been selected through a duly notified PESB selection process in
Schedule B scale of pay would be entitled to 24 passages, both on retirement
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and/ or demitting office. It was also mentioned in the aforesaid clarification
that such officers would also be entitled for upgradation to highest class
against tickets issued in executive class.
9. The Appellant before this Court, placing reliance upon Air India
Employees' Passage Regulations dated 27.03.2017 and an Office
Memorandum of the Government of India, Ministry of Heavy Industries &
Public Enterprises, Department of Public Enterprises dated 01.02.2017 is
claiming 24 passages.
10. The Appellant on 14.08.2017 made a representation to the Chairman
and Managing Director of Air India Limited for grant of air passages and
also stated that there is a clear policy in place in accordance with which
passages are required to be issued. However, nothing was done in the matter
and, therefore, representations were again preferred to the Chairman and
Managing Director on 25.06.2020 and 15.09.2020.
11. That one Mr. Akshat Bajpai filed an application under the Right to
Information Act, 2005 regarding passage entitlements granted to CVO's and
CMD's who joined Air India on deputation and a reply was given to Mr.
Akshat Bajpai on 14.09.2020 stating that the CVO's and CMD's who joined
Air India on deputation are being extended the SOL passage facility in
accordance with the terms and conditions of their deputation. It was also
mentioned that the full time ACC appointed directors selected via notified
PESB selection process in Schedule B scale of pay are entitled to 24
passages on retirement and/ or demitting office.
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12. The Appellant's representations were rejected by the Respondent
Airline by an order dated 01.12.2020 and it was brought to the notice of the
Appellant that he has resigned from the post of Director so he is not entitled
for grant of 24 air passages.
13. The Appellant being aggrieved by the communication dated
01.12.2020 came up before this Court by filing Writ Petition No. 6695/2021
and the learned Single Judge has dismissed the Writ Petition vide order
dated 19.07.2021. The order passed by the learned Single Judge is
reproduced as under:
The matter is being heard through Video-Conferencing.
" 1. This petition has been filed by the petitioner with the
following prayers:-
"In view of the facts & circumstances stated above, it is most
respectfully prayed that this Hon‟ble Court under the inherent
powers under Article 226 may be pleased to:
i. Issue a writ, direction or order in the nature of
mandamus or any other writ, direction or order to
set aside impugned letter dated 01.12.2020 and
thereby direct the Respondent for the issuance of
the post demit passages in accordance with the
conditions stipulated under Air India Employees'
Passage Regulations, 2017;
ii. Issue a writ, direction or order directing the
Respondent to initiate inquiry against the officers
who harassed the Petitioner and denied the him his
rightful passage dues;
iii. Pass any other or further consequential
order(s) as this Hon‟ble Court deems fit and
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proper in the facts and circumstances of the
aforesaid case in favor of the Petitioner and
against the Respondent."
2. In substance, the instant petition has been filed by the
petitioner seeking quashing of the letter dated December 01,
2020 by which the request of the petitioner to the Air India for
grant of Staff on Leave Passage Facility was rejected on the
ground that he has resigned from the services of the Company
before completing his tenure.
3. It is the submission of the learned counsel for the petitioner
that the petitioner had joined the respondent-Air India as
Director (Personnel) on July 05, 2012. On February 06, 2017,
the petitioner tendered his resignation from Air India, which
was accepted and he was relieved from his duties in Air India.
Pursuant thereto, he joined NHPC Ltd. as Director
(Personnel).
4. The learned counsel for the petitioner has relied upon
Annexure-5, which is Air India Employees‟ Passage
Regulations, more specifically Regulation 3.2, which is under
heading „entitlement for retired employees‟, which contemplate
as under:-
"Retired employees and Board level functionaries
who have retired / demitted office in Air India
shall be entitled for passage facilities as
applicable to their grade at the time of
superannuation."
5. According to the learned counsel for the petitioner, under the
above regulation, the petitioner is entitled to 24 passages on the
Air India flight in any part of the world. According to him, the
word „demitted‟ referred to in Regulation 3.2 would also
include an employee / Board level functionary demitting the
office on resignation.
6. I am not in agreement with such a plea of the learned
counsel for the petitioner for the simple reason, the heading of
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Regulation 3.2 states „Entitlement for Retired Employee‟. That
apart, even the provision, as referred to above, refers to
„retired employees‟ and „Board level functionaries‟ who have
retired / demitted office in Air India and it also states, the
passage facilities shall be as applicable to their grade at the
time of „superannuation‟.
7. The aforesaid Regulation leave no manner of doubt that it is
only applicable to those employees / Board level functionaries,
who have retired on attaining the age of superannuation. It is a
conceded fact that the petitioner has resigned from the services
of Air India.
8. On a specific query, whether the petitioner has given any
conditional notice of resignation seeking the benefit of 24
passage facility to him, no justifiable answer is forthcoming. In
any case, the petitioner having tendered his resignation, which
has been accepted, suggest, the petitioner intended to leave Air
India forgoing all the benefits, which an employee, on
superannuation would have been entitled to.
9. I do not see any merit in the petition. The same is dismissed.
No costs."
14. Learned counsel for the Appellant has vehemently argued before this
Court that the Respondent Air India Limited has wrongfully and arbitrarily
denied benefit of 24 passages to the Appellant despite their being a clear
policy existing on the subject.
15. It has been contended that the entitlement of passages to the
employees of the Air India Limited are, in fact, emoluments arising out of
statutory rules and as per Rule 3.2 of Passage Regulations, full time ACC
appointed Directors selected via notified PESB selection process shall, on
demitting the office, be entitled for 24 passages.
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16. The Appellant further contended that he did not resign from the office
of Director (Personnel), Air India Limited, as stated in the impugned letter
dated 01.12.2020 but was, in fact, transferred to the post of Director
(Personnel) NHPC limited and it was a technical resignation.
17. It has been further contended that a technical resignation is a one
where a Government servant applies through a proper channel for a post in
the same or other Department and upon being selected, he is required to
resign from the previous post for administrative reasons. Further, under
such a resignation, the benefit of past services, if otherwise admissible under
the Rules, is not at all forfeited.
18. It has been vehemently argued before this Court that the Appellant, in
fact, has not waived of his rights in respect of past service benefits and he
was merely transferred from one Government organization to another
consequent to his selection and, therefore, he is certainly entitled for 24
passages.
19. The Appellant further contended that the Ministry of Civil Aviation's
letter dated 03.02.2017 and the relieving letter issued by Air India Limited
clearly mentioned that the Appellant was relieved subsequent to his
appointment as Director, NHPC and the same was a technical resignation.
Therefore, once it was a technical resignation, he is entitled for 24 Air
Passages.
20. The Appellant further contended that keeping in view the Office
Memorandum issued by the Government of India, Ministry of Heavy
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Industries dated 01.02.2017, the Appellant is entitled to the benefits granted
by Air India Limited even though he has submitted a technical resignation.
It was further contended that the Appellant was entitled to the benefit of
post-retirement passages in accordance with the terms stipulated in Clause 3
of the Passage Regulations. The Appellant submitted that the words retired/
demit office shows that both cases are one which call for the benefits in
accordance with the Passage Regulations.
21. Learned Counsel has further contended that the words demit means
resignation and the Appellant has not waived his rights in respect of 24
passages.
22. It has been further contended that the Ministry of Civil Aviation had
relieved the Appellant so that he may join NHPC Ltd., and it was never a
case of resignation from Air India Limited. It has been vehemently argued
that the learned Single Judge failed to appreciate the difference between
resignation and technical resignation while interpreting the relevant
provisions of the Passage Regulations and the Office Memorandums issued
on the subject.
23. It has been further contended that the Hon'ble Supreme Court in the
case of Frick India Ltd. v. Union of India, AIR 1990 SC 689 had held that
the heading prefixed to the section or entries cannot control the plain words
of the provision or even referred to for the purpose of construing the
provisions, which are clear and unambiguous.
24. Reliance has been further placed upon a judgment delivered in the
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case of Raichurmathan Prabhakar v. Rawatmal Dugar, (2004) 4 SCC 766
and it has been contended that in the aforesaid case it was held that in case
there was a conflict between plain reading of the provision and the heading
of the title, the heading would not control the meaning which is clearly
discernible from the language of the provision thereunder. It has been
contended before this Court that the word 'retired' is used in addition to the
word 'demitting the office' which suggests that the resignation or leaving
office before superannuation entitles the Appellant for the same benefit as
the officer retiring upon superannuation.
25. It was submitted that this Court, in the case of Airlines Retired
Officers Welfare Assocation & Ors v. Air India Ltd., W.P.(C.) No.
7634/2013 has already, to a great extent adjudicated the very same issue
pertaining to grant of passages along with medical facility and thereby
directed for availing the same. It was submitted that the judgment of the
learned Single Judge is contrary to Article 39(d) of the Constitution and the
word 'demit' in its common English sense means resignation from office.
26. On the other hand, learned counsel for the Respondent submitted
before this Court that a bare perusal of the Passage Regulations makes it
clear that no such benefit of passages is conferred upon Board level
functionaries who have resigned from the service of Air India Limited prior
to retirement or superannuation. Heavy reliance has been placed upon
Regulation 7(xii) of the Passage Regulations.
27. Regulation 7(xii) of Passage Regulations, inter alia state that
employees who have resigned from the services of the Air India are not
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entitled to air passage facilities. Therefore, air passage facilities are not
contemplated for employees, including board level functionaries who have
demitted or resigned from the services of Air India, either prior to
retirement/ superannuation or prior to completion of their tenure. It was
further submitted that the Appellant's interpretation of Clause 3.2 of the
Passage Regulations is erroneous and that the word 'retired' as well as
'demitted' is qualified by the term 'at the time of superannuation'. Thus, it
was submitted before this Court that there is no ambiguity in the scope of
the meaning of the said regulation. The aforesaid Regulation leaves no
manner of doubt that it is only applicable to those Board level functionaries
who have retired/ demitted on attaining the age of superannuation, and not
otherwise. It was further contended that the Passage Regulations never
contemplated entitlement to passage facilities upon resignation. Had the
passage Regulations contemplated entitlement to passage facilities upon
resignation, the term 'at the time of superannuation/ resignation' would have
been used instead of 'at the time of superannuation'
28. Learned counsel for the Respondent has further contended that the
entitlement of passages was for providing benefits to those employees who
had dedicated their service to the Respondent and retired/ demitted the office
at the time of superannuation.
29. It was further contended before this Court that if the interpretation of
the Appellant was accepted, it would lead to creation of a third class of
employees, who, despite of resignation from service would be accorded the
benefit of passage facility which otherwise was only granted to employees
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who have superannuated. Such an interpretation would be discriminatory
and would create an anomaly wherein board level functionaries could avail
benefits of the passage facility by joining the Respondent for a brief period
and then resigning to avail better opportunities.
30. Learned counsel for the Respondent, in response to the contention of
the Appellant that the learned Single Judge failed to appreciate the content
of the said Regulation, submitted that the learned Single Judge has rightly
delivered the judgment considering both the heading and the content of the
Regulation 3.2. It was submitted that there is no conflict between the
heading and the content of the Regulation. It was further stated before this
Court that the doctrine of Noscitur a Sociis should be employed while
interpreting Regulation 3.2 of the Passage Regulations, thereby ascertaining
ambiguous words.
31. The Respondent further submitted that the 79th Board Meeting of the
Respondent held on 30.06.2017 had issued clarifications regarding passage
facilities in respect of the Appellant/ cases like the Appellant. The Board
held that the word 'demit' used in the Passage Regulations meant demitting
office on completion of tenure. However, in the present case, the Appellant
had demitted office prior to completion of the entirety of 5 years of his
tenure. It has been vehemently argued before this Court that the Appellant
is already entitled to travel by rail as he is an ex Indian Railway Services
Officer and by granting the benefit of 24 air passages would mean to grant
of dual benefits for the same service rendered by him. It has been contended
before this Court that the Air India Limited has rightly issued the impugned
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letter and the learned Single Judge has rightly dismissed the writ petition.
32. Learned counsel for the Respondent, in response to the allegation that
the learned Single Judge failed to appreciate the difference between
resignation and technical resignation, submitted that even if the Appellant's
resignation was a technical, he is still not entitled to the benefits of 24
passages. The circular of DOP&T dated 17.08.2016 relied upon by the
Appellant states that the benefits of past service may be given upon
technical resignation, if otherwise admissible under the rules. In the present
case, the Passage Regulations do not permit for grant of passage facility to
the Directors in case they are demitting office before attaining the age of
superannuation. A prayer has been made for dismissal of the LPA.
33. This Court has carefully gone through the impugned order passed by
the Air India Corporation and the judgment delivered by the learned Single
Judge. On a careful reading of the order passed by the learned Single Judge,
it is crystal clear that the order of the learned Single Judge does not suffer
from any erroneous interpretation. This Court is in agreement with the
reasoning and interpretation rendered by the learned Single Judge in the
impugned order. On a careful perusal of the order passed by the learned
Single Judge, it cannot be stated that the Regulation 3.2 of the Passage
Regulations shall be applicable to employees/ Board level functionaries who
have resigned/ demitted office. The said Regulation is only applicable to
those functionaries who have superannuated.
34. The case of Airlines Retired Office Welfare Association (supra)
relied upon by the Appellant does not help the Appellant in any manner as it
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was rendered in a different factual scenario. It was with regard to
enforcement of the terms and service conditions which retired employees of
the Respondent herein were entitled at the time of superannuation. In the
aforesaid case, the Petitioner's therein were granted benefits that they were
entitled to at the time of retiring from Air India. On a careful reading of the
Passage Regulations of the Respondent Air India Limited, it is revealed that
only those employees who have superannuated/ retired from the airline
would be entitled to free passages.
35. In case the arguments canvassed by the Appellant is accepted, it
would result in an anomaly wherein some people who have served the
airline for a very small period and who joined some other services on a
higher post by submitting technical resignation, even though they have
worked for a very little period with the Air India Limited, shall be entitled to
claim passage benefits. In the present case, the Appellant has served the Air
India Limited from 05.07.2012 till 06.12.2017 and he wants the benefit of
24 passages. The Appellant had undisputedly resigned and was appointed
Director (Personnel) NHPC Ltd. and it was a case of joining other
organization after tendering resignation and, therefore, the benefit of grant
of 24 passages under the Passage Regulations is not at all available to the
Appellant.
36. In the present case, the Appellant had not even completed his entire
tenure, much less, served the airline till superannuation and the benefit of
grant of 24 air passages is available only to those employees who retire/
demit office on crossing the date of superannuation. The present case is not
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a case where the Appellant has attained the age of superannuation. Even
though, it was a technical resignation, the Appellant as he had left the
organization without completing the age of superannuation, the question of
grant of 24 free passages to the Appellant does not arise.
37. In the considered opinion of this Court, by no stretch of imagination,
the Appellant is entitled for grant of free passages as he has resigned from
service. On a careful reading of the Office Memorandum of Government of
India, Ministry of Finance, dated 17.08.2016 governing technical
resignation, the benefit of past services otherwise admissible under the Rules
are certainly available to an employee rendering technical resignation.
However, in the present case, the passage Regulations do not permit grant of
passage facility to the Directors who are demitting office before attaining the
age of superannuation.
38. The Hon'ble Supreme Court in the case of BSES Yamuna Power Ltd.
V. Sh. Ghanshayam Chand Sharma & Anr, Civil Appeal No. 9076/2019
has drawn a distinction and elucidated on the concepts governing resignation
and retirement. The relevant paragraphs of the aforesaid judgment are
reproduced as under:
"11. The Court in Shree Lal Meena II elucidated the distinction
between resignation and voluntary retirement in the following
terms:
"22. ... quoting RBI v Cecil Dennis Solomon (2004) 9 SCC 461] In
service jurisprudence, the expressions "superannuation",
"voluntary retirement", "compulsory retirement" and
"resignation" convey different connotations. Voluntary retirement
and resignation involve voluntary acts on the part of the employee
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to leave service. Though both involve voluntary acts, they operate
differently. One of the basic distinctions is that in case of
resignation it can be tendered at any time, but in the case of
voluntary retirement, it can only be sought for after rendering the
prescribed period of qualifying service. Another fundamental
distinction is that in case of the former, normally retiral benefits are
denied but in case of the latter, the same is not denied. In case of the
former, permission or notice is not mandated, while in the case of
the latter, permission of the employer concerned is a requisite
condition. Though resignation is a bilateral concept, and becomes
effective on acceptance by the competent authority, yet the general
rule can be displaced by express provisions to the contrary."
The above observations highlighted the material distinction between
the concept of resignation and voluntary retirement. The Court also
observed that while pension schemes do form beneficial legislation
in a delegated form, a beneficial construction cannot run contrary
to the express terms of the provisions:
"26. There are some observations on the principles of public
sectors being model employers and provisions of pension being
beneficial legislations (see Asger Ibrahim Amin v LIC). We may,
however, note that as per what we have opined aforesaid, the issue
cannot be dealt with on a charity principle. When the legislature, in
its wisdom, brings forth certain beneficial provisions in the form of
Pension Regulations from a particular date and on particular terms
and conditions, aspects which are excluded cannot be included in it
by implication."
The view in Asger Ibrahim Amin was disapproved and the court
held that the provisions providing for voluntary retirement would
not apply retrospectively by implication. In this view, where an
employee has resigned from service, there arises no question of
whether he has in fact, "voluntarily retired‟ or, "resigned‟. The
decision to resign is materially distinct from a decision to seek
voluntary retirement. The decision to resign results in the legal
consequences that flow from a resignation under the applicable
provisions. These consequences are distinct from the consequences
flowing from voluntary retirement and the two may not be
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substituted for each other based on the length of an employee‟s
tenure."
39. The aforesaid judgment draws a distinction between a resignation and
voluntary retirement. The present case is not a case of retirement. The
Appellant in the present case, with open eyes, has resigned from the services
of Air India Limited and the benefit of 24 free passages are only available to
employees who retire on the date of their superannuation and, therefore,
keeping in view the aforesaid judgment, by no stretch of imagination, it can
be held that the technical resignation of the appellant was, in fact, a
retirement and as the Passage Regulations do not entitle a person who has
left the organization prior to expiry of date of his superannuation, the
question of granting relief to the Appellant in the peculiar facts and
circumstances of the case does not arise. Therefore, in the light of the
aforesaid, we do not find a reason to interfere with the order passed by the
Respondent airline and the judgment delivered by the learned Single Judge.
40. Dismissed.
SATISH CHANDRA SHARMA, CJ
SUBRAMONIUM PRASAD, J.
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