Simon Diction Simon House v. Air India Ltd. & Ors.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` MONDAY, THE 19[TH] DAY OF FEBRUARY 2024 / 30TH MAGHA, 1945 ``` ## `WP(C) NO. 14800 OF 2007` ## `PETITIONERS:` - `1 SIMON DICTION SIMON HOUSE, O.L.G.NAGAR,, VALIATHURA, VALLAKKADAVU POST,, TRIVANDRUM-695 008.` - `2 ADDL.P2. GEMMA DICTION, AGED 53 YEARS, W/O. LATE. SIMON DICTION, RESIDING AT T.C 87/193-1 SIMON HOUSE, VALIYATHURA, VALLAKDAVU.P.O. THIRUVANTHAPURAM- 695008` - `3 ADDL.P3.DONOR DICTION, AGED 29 YEARS, S/O. LATE. SIMON DICTION, RESIDING AT, T.C 87/193-1 SIMON HOUSE, VALIYATHURA, VALLAKDAVU.P.O. THIRUVANTHAPURAM - 695008 (ADDL.P2 AND P3 ARE IMPLEADED AS PER ORDER DATED 04-01-2024 IN IA 1/23 IN WPC 14800/2007) BY ADV SRI.SIVAN MADATHIL` ## `RESPONDENTS:` - `1 AIR INDIA LTD. AIR INDIA BUILDING, NARIMAN POINT,, MUMBAI 400 021, REPRESENTED BY ITS CHAIRMAN-CUM-, MANAGING DIRECTOR.` - `2 THE CHAIRMAN-CUM-MANAGING DIRECTOR AIR INDIA LTD., AIR INDIA BUILDING,, NARIMAN POINT, MUMBAI-400 021.` - `3 DIRECTOR GENERAL DIRECTORATE GENERAL OF CIVIL AVIATION,, OPP.SUFDERJUNG AIRPORT, NEW DELHI.` - `4 UNION OF INDIA REPRESENTED BY SECRETARY,, MINISTRY OF CIVIL AVIATION,, RAJEEV GANDHI BHAVAN, SUFDERJUNG AIRPORT, NEW DELHI.` - `5 JOINT GENERAL MANAGER AIR INDIA OPERATIONS DEPARTMENT,, OPERATIONS BUILDING - KALINA, SANTACRUZ (E) - MUMBAI.` W.P.© No.14800 of 2007 : 2 : ``` 6DEEPAK ANAND EXECUTIVE DIRECTOR OF OPERATIONS,, (FORMERLY JOINT GENERAL MANAGER & ADDITIONAL, GENERAL MANAGER), OPERATIONS BUILDING-KALINA, SATACRUZ (E)-MUMBAI. ``` ``` ADV.SRI JOHN VITHAYATHIL FOR R1 & R2. ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.© No.14800 of 2007 : 3 : ## P.V.KUNHIKRISHNAN, J. --------------------------------------------- W.P.(C) No.14800 of 2007 -----------------------------------------------------Dated this the 19[th] day of February, 2024. ## JUDGMENT The above writ petition is filed with the following reliefs: i) Issue a writ of certiorari quashing Exhibit P32 and P33 as they are illegal, arbitrary and violative of the principles of natural justice and ab-initio void. ii) issue a writ of mandamus or any other appropriate writ, order ог direction commanding respondents 1 to 3 to reinstate the petitioner with immediate effect as Copilot with all the consequential benefits (shortfall payment) from the date of termination i.e., 23-10-98 to 29-5-2001 (when he was under termination) as per Exhibit P20. iii) to issue a writ of mandamus or any other appropriate order or direction directing the respondents to grant shortfall payment of the petitioner forthwith as per Exhibit P35 and also direct the first respondent to permit him to continue his occupation of the family quarters allotted to him without charging any enhanced W.P.© No.14800 of 2007 : 4 : compensation. iv) to issue such other writ, order or direction that may deem fit and appropriate by this Hon'ble Court as per the circumstances of the case. 2. This writ petition is filed against the illegal termination of the service of the petitioner as Trainee Copilot in Air India. Now, the Air India is a private concern. The Bombay High Court considered this point in Writ Petition No.1770 of 2011. The relevant portion of the judgment is extracted hereunder: “68. With its privatization, AIL has ceased to be an Article 12 authority. There is and can be no doubt that no writ or order or direction can be issued on these writ petitions against AIL for an alleged breach of a Fundamental Right. Conscious of the change in the factual as well as legal position arising out of privatization of AIL, Mr.Singhvi with the experience behind him changed the line of argument and introduced the concept of 'public employment’ of the petitioners and contended that since the petitioners were employees of AIL, which at the material time was discharging public functions, the writ petitions ought to be heard particularly when the W.P.© No.14800 of 2007 : 5 : petitioners are not at fault for the time lapse. 69. We are afraid, the contention that the petitioners were in ‘public employment’ earlier and that it should weigh in our minds for the purpose of grant of relief, as claimed originally, or moulding of relief because of the changed circumstance, is unacceptable for the reasons discussed above. By way of reiteration, we say that whether or not AIL was discharging public functions or the petitioners were in public employment need not be examined in these proceedings because, as the matter presently stands, no writ can be issued by us to AIL. In the circumstances, all the decisions cited by Mr.Singhvi laying down the law that a body discharging public functions would be amenable to the writ jurisdiction have no materiality for deciding the question at hand. 70. Further, we see no reason to accept the contention of Mr.Singhvi that there has been a collusion between UoI and AIL, which should make the writ petition maintainable. After all, whether or not there has been collusion is a question of fact. There needs to be a factual foundation therefor, meaning thereby that collusion has to be pleaded. Once pleased, the Court may, upon looking at the reply-affidavit, decide whether collusion is proved or not. In the absence of any foundation having been laid to W.P.© No.14800 of 2007 : 6 : prove collusion, we are of the view that the contention is not well taken. 71. We are also of the view that impleadment of AIAHL in these writ petitions by granting the prayer for amendment without there being any substantial amendments incorporated in the Schedule of Amendment would not lead the petitioners to their desire of obtaining relief from this Court. The objection of Mr. Khambatta is well-founded and, if at all, any writ petition is maintainable against AIAHL, the petitioners ought to pursue their remedy by instituting a fresh writ petition; or else, by pursuing proceedings before the civil court in accordance with law. 72. Before parting, we place on record that we are not oblivious of the observations of the Supreme Court, made in the context of a landlord-tenant dispute, in paragraph 10 of its decision in Pratap Rai Tanwani v. Uttam Chand MANU/SC/0741/2004: (2004) 8 SCC 490. It was observed thus: "10. The judicial tardiness, for which unfortunately our system has acquired notoriety, causes the lis to creep through the line for long long years from the start to the ultimate termini, is a malady afflicting the system. During this long interval many many events are bound to take place which might happen in relation to the parties as well W.P.© No.14800 of 2007 : 7 : as the subject-matter of the lis. If the cause of action is to be submerged in such subsequent events on account of the malady of the system, it shatters the confidence of the litigant, despite the impairment already caused." 73. It is a fact that this Court could not decide these writ petitions during the long years of its pendency, which is bound to have shattered the hopes and aspirations of retired employees like the petitioners. However, at the same time, such inability to decide these writ petitions prior to privatization of AIL was due to reasons absolutely beyond the control of this Court, as admitted by Mr. Singhvi even. Notwithstanding the same, this Court, through its Chief Justice, regrets its inability to so decide prior to privatization of AIL.” 3. I am perfectly in agreement with the above judgment. Therefore, this writ petition is not maintainable on the question. The petitioner is free to agitate the same before the appropriate authority in accordance with law. With the above observations, this writ petition is W.P.© No.14800 of 2007 : 8 : ## closed. Sd/- P.V.KUNHIKRISHNAN, JUDGE smv W.P.© No.14800 of 2007 : 9 : ``` APPENDIX OF WP(C) 14800/2007 ``` ## `PETITIONER’S EXHIBITS` ``` P1- A TRUE COPY OF THE CPL NO.1570 ISSUED TO THE PETITIONER ON 19.6.1986 P2- A TRUE COPY OF THE ORDER NO.PF/HQ/PERS/3731 DATED 28.8.89 ``` ``` P3- A TRUE COPY OF THE CONFIRMATION LETTER NO.PF:HQ:PERS:4096 DATED 30.10.1990 ``` ``` P4:TRUE COPY OF ORDER NO.AV.18030/28/91 - ACV (PT) DATED 24.5.1994 P5:TRUE COPY OF THE ORDER NO.4-15T/6057 DATED 30.10.95 ``` ``` P6: TRUE COPY OF THE COMMUNICATION LETTER NO.TD/T/C310/608/5155 DATED 6.10.1995 ``` ``` P7:TRUE COPY OF THE RELEVANT EXTRACT OF CHAPTER 3 ‘AIRCRAFT SPECIFIC ENDORSEMENT TRAINING’ ``` ``` Exhibit P8-True copy of Pilot Technical Examination Result Card dated 7-3-96 ``` ``` Exhibit P8(a)-True copy of Pilot Technical Examination Admit Card dated 4-4-96 ``` ``` Exhibit P9 - True photocopy of the report 4-15/233 dated 15-4-98 ``` ``` Exhibit P10-True copy of Supernumerary Flight report for Aircraft & Rout familiarization ``` ``` Exhibit P11 - True copy of relevant extract of the approved Training Manual, Chapter 10, Clause 10.2.1 and 10.2.2 ``` ``` Exhibit P12.- True photocopy of the notice No. 4- 15/3779 dated 23-10-98 ``` W.P.© No.14800 of 2007 : 10 : ``` Exhibit P13-Truc photocopy of the appeal dated 5-11-98 ``` ``` Exhibit P14-True copy of letter No. 4- 15/4662 dated 14-12-98 ``` ``` Exhibit P15- True copy of the representation dated 2-12-98 ``` ``` Exhibit P16- True copy of the reply to Exhibit P15 representation by the Department dated 31-12-98 ``` ``` Exhibit P17- True photocopy of the letter dated 4-12-1998 ``` ``` Exhibit P18-True copy of the representation dated 3-9-99 by the petitioner ``` ``` Exhibit P19 - True photocopy of the representation dated 24-11-99 by the petitioner ``` ``` Exhibit P-20- True copy of order issued by the 3rd respondent dated 29- 5-2001 ``` ``` Exhibit P21 - True photocopy of the communication No. HQ/64-7/1425 DATED 29.5.2001 ``` ``` P22 - True copy of the communication dated 31-05-2001 from the General Manager Ops. ``` ``` Exhibit P23 - True copy of the Operations Training Manual, Pilot Proficiency Check, Chapter 3 ``` ``` Exhibit P24- True photocopy of communication No. TD/4J-SD/740 dated 21-3-02 . ``` ``` Exhibit P25 - True photocopy of the Certificate in Simulator Test, LC-IR test and Circuit and Landing check ``` W.P.© No.14800 of 2007 : 11 : ``` Exhibit P25(a) - True copy of the letter No. 4- 15/5882 dated 25-11-2003 ``` ``` Exhibit P26 - True photocopy of the letter dated 17-2-2003 ``` ``` Exhibit P27 - True photocopy of the communication dated 13-4-2004 ``` ``` Exhibit P28- True photocopy of the letter dated 30-4-2004 ``` ``` Exhibit P29 - True photocopy of the petitioner dated 23-8-2005 ``` ``` Exhibit P30 - True photocopy of the letter No. TD/4T_SD/3941 dated 9-11- 2005 ``` ``` Exhibit P31- True photocopy of the Refresher Training. ``` ``` Exhibit P31(a) - True photocopy of the Simulator Record. ``` ``` Exhibit P31(b)- True photocopy of the Supernumerary Report ``` ``` Exhibit P32 - True photocopy of the letter No. TD/4T-SD/5256 dated 23-11- 2006. ``` ``` Exhibit P33: True photocopy of the letter No.TD/4T-SD/5256 dated 23.11.2006. ``` ``` Exhibit P34. True photocopy of the appeal dated 10-2-2007 ``` ``` Exhibit P35 - True photocopy of the representation dated 2-5-2007 by the Petitioner ``` ``` Exhibit P36 - True copy of the letter No.LWS/HSG/21/1/B/26618 dated 5-12- 2006 ``` ``` Exhibit P37: True copy of the reply dated 8/9- 11-2009 issued by the Operations Department of the first respondent to the Executive Director ``` W.P.© No.14800 of 2007 : 12 : ``` Exhibit P38: True copy of the order dated 29-9- 2010 of the Operations Department of the first respondent to the Chairman & Managing Director of the first respondent. ``` ``` Exhibit P39 True copy of the representationdated2-5-2014 submitted by the petitioner before the General Manager, Operations, Air India. ``` ``` Exhibit P40: True copy of the communication dated 29-4-2014 of the Operations Department, Air India addressed to the Chairman & Managing Director of the first respondent. ``` ``` Exhibit P41: True copy of the communication dated 2-5-2014 of the Operations Department, Air India to the General Manager Personnel, HR Department of the first respondent. ``` ``` Exhibit P42: True copy of the communication dated 5-5-2014 of the Operations Department, Air India to the General Manager Personnel, HR Department of the first respondent. ``` ``` Exhibit P43: True copy of the letter dated 15-9- 2014 from the petitioner to the Director, Finance, Air India. ``` ``` Exhibit P44 : True copy of the representation dated 21-1-2015 submitted by the petitioner to the Executive Director of Operations, Air India. ```