Madras High Court
G. Gowrishanker vs The Management Of Indian Airlines Rep. ... on 5 April, 2002
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
1. By consent, the main writ petition itself is taken up for disposal.
2. In this writ petition the petitioner seeks to issue a writ of declaration, declaring Regulation No. 13 of the Indian Airlines Employees Service Regulations is ultra vires and void as offending Section 23 of the Contract Act and also Articles 14 and 21 of the Constitution of India and consequently hold the order of termination Ref.No.MPD/2296 dated 12.10.2001, issued by the second respondent terminating the petitioner from service to be void, illegal and unreasonable.
3. The case of the petitioner is briefly stated hereunder: At the time of passing of the order of termination, the petitioner was the Senior Security Assistant of Indian Airlines. He had been in service of the Corporation for 21 years. He was placed under suspension on 28.04.2000. The said order of termination was based on a criminal case initiated by the Chennai Customs Department, due to which he was under custody from 25.04.2000. The allegation against him was that 48 gold bars with foreign markings were recovered from him on 25.04.2000, when searched by the Air Intelligence Unit of the Customs Department. The petitioner is totally innocent. The confessional statement was forcibly obtained from him and the same was retracted on 02.05.2000 through his Advocate. He was detained under COFEPOSA and this Court allowed his H.C.P.No.2024 of 2000 on 08.01.2001. Instead of conducting enquiry etc., the respondents resorted to the impugned Regulation 13, which is unsustainable in law.
4. The third respondent has filed a counter affidavit on behalf of respondents 1 to 3, wherein it is stated that Service Regulation 13, as extracted by the petitioner is erroneous and incorrect. The said Regulation is not in force and the same was amended as long back as on 12.01.1993. After extracting the existing Service Regulation 13(a), it is stated that since the basis of challenging the action of the first respondent Company is misconceived and the writ petition is liable to be rejected.
5. It is further stated that the petitioner was on duty at Chennai Air Port on the intervening night of 24th / 25th April, 2000 and he was apprehended by the Customs Authorities and a Rexene cover adhesive packet containing 48 numbers of gold bars with foreign marking weighing 10 tollas each, totally weighing 5596.8 grams valued at Rs.21,67,473 (I.V.) and Rs.24,71,547.00 (M.V.) was recovered from his person. He also made a statement to the Customs Authorities on the same date admitting that he was asked by an outsider by name Kadar Mohammed to collect the aforesaid packet containing gold bars kept below the wash basin in the toilet located in the immigration area of the Arrival hall of the Airport after the arrivals and departures of Singapore and Malaysian Airlines aircraft without the knowledge of the customs officials and hand over the same outside the Airport for monetary consideration, to which he agreed to. He was arrested and remanded to judicial custody on 25.04.2000 and subsequently he was detained under COFEPOSA. Since the petitioner was arrested and remanded to custody and subsequently he could not report for duty, accordingly he was placed under deemed suspension. The petitioner was involved in an act which makes him untrustworthy and unsuitable for continued employment in the first respondent Company and detrimental to the interests of the Company. Considering the nature of duties performed by the petitioner, the petitioner will have unrestricted access to the Airport and to the Aircraft, which makes his continuance in service a grave security risk in the context of the present high risk security scenario affecting civil aviation and detrimental to the interest of the first respondent Company. Accordingly, in terms of Service Regulation 13 (a), the Board of Directors at its 58th meeting held on 01.10.2001, decided to terminate the services of the petitioner as his act not only posed a grave security risk making his continuance in service detrimental to the interests of the first respondent Company, more particularly in the context of high security environment in civil aviation sector but also the petitioner has become untrustworthy and unsuitable for continued employment and detrimental to the interest of the first respondent Company, his services were terminated with effect from 12.10.2001.
6. In the light of the above pleadings, I have heard the learned counsel for petitioner as well as respondents.
7. The only contention of Mr. V. Prakash, learned counsel for the petitioner is that, if this Court finds that Regulation 13 of the Indian Airlines Employees Service Regulation is ultra vires and void, the consequential order of termination dated 12.10.2001, issued by the second respondent terminating the petitioner from service is liable to be held as illegal and unreasonable.
8. In order to appreciate the said contention, it is relevant to refer Service Regulation 13 as extracted by the petitioner in his affidavit filed in support of the above writ petition.
" 13. Services of an employee are terminable at 30 days notice on either side or basic pay in lieu. " Provided, however, the Corporation will be at liberty to refuse to accept the termination of his service by an employee where such termination is sought in order to avoid disciplinary action contemplated or taken by the management. "
By pointing out the said Regulation and the decision of the Supreme Court in the case of Central Inland Water Transport Corporation Ltd., vs. Brojo Nath Ganguly and another , Mr. V. Prakash contended that the said Regulation is void under Section 23 of the Contract Act, 1872 being opposed to public policy and is also ultra vires of Article 14 of the Constitution of India, as it confers upon the Corporation's right to terminate the employment of a permanent employee by giving him one month notice in writing or salary in lieu thereof.
9. According to Mr. N.G.R. Prasad, learned counsel appearing for the respondents the Service Regulation 13 as extracted by the petitioner is not sustainable. Inasmuch as the said Regulation is not in force and the same was amended as long as back as on 12.01.1993. The correct Service Regulation which is in force since January, 1993 is as follows:
" Service Regulation 13 (a):
The services of an employee may be terminated without assigning any reason to him / her and without any prior notice but only on the following grounds not amounting to misconduct under the Standing Orders, namely:-
(i) If he / she is, in the opinion of the Corporation (the Board of Directors of Indian Airlines) incompetent and unsuitable for continued employment with the Corporation and such incompetence and unsuitability is such as to make his / her continuance in employment detrimental to the interest of the Corporation;
(OR) If his/ her continuance in employment constitutes, in the opinion of the Corporation (the Board of Directors of Indian Airlines), a grave security risk making his / her continuance in service detrimental to the interests of the Corporation;
(OR) If in the opinion of the Corporation (the Board of Directors of Indian Airlines) there is such a justifiable lack of confidence which having regard to the nature of duties performed, would make it necessary in the interest of the Corporation, to immediately terminate his / her services. "
It is clear that though the respondents are empowered to terminate the services of an employee without assigning any reason and without prior notice, they are entitled to do so, only on the grounds enumerated therein. It is also stated by the respondents that after the decision of the Supreme Court in the case of Central Inland Water Transport Corporation, the first respondent Corporation has initiated steps to amend its Regulation 13 and brought it in line with Article 311(2) of the Constitution. I am satisfied that reliance of the petitioner on pre-amended Regulation 13 and seeking relief based on that cannot be sustained. In the light of the grounds enumerated in Regulation 13, the argument of the learned counsel for the petitioner based on the unamended Regulation is misconceived and liable to be rejected. Further, the unamended Regulation 13 and the amendment made by the first respondent Company subsequent to the Central Water Transport Corporation case are referred to in the case of Delhi Transport Corporation vs. DTC Mazdoor Congress reported in 1991 Supp.(1) S.C.C. 600.
10. In the light of what is stated above, I hold that in view of amended Service Regulation 13, which is in force since January, 1993, the challenge in the writ petition relating to unamended Regulation 13 is misconceived and liable to be dismissed. Though learned counsel for the petitioner argued the matter on merits questioning the order of termination, I am of the view that the same cannot be canvassed in this writ petition. In other words, regarding merits relating to his termination, it is for the petitioner to agitate the same before the appropriate forum in accordance with law. With the above observation, the writ petition is dismissed. No costs. Consequently, connected WPMP., is also dismissed.