KING AIRWAYS Vs. CAPTAIN MANJIT SINGH

JUDGEMENT

(1.) These writ petitions are being disposed of by a common judgment as identical facts and legal issues are involved in these petitions. In W.P.(C) Nos. 664/2010, 3389/2010 and 2666/2010 the management has challenged the orders each dated 14 th September, 2009 passed by the Industrial Tribunal-cum-Labour Court (hereinafter referred to as "Tribunal") allowing the claim of the workman towards unpaid salary, incentives for extra flying hours and welfare expenses, which were not given by the management. The workmen in writ petitions Nos. 7442/2010, 7444/2010 and 7445/2010 have challenged the same impugned orders to the extent that in the claim petitions, interest was also prayed for, however no interest has been granted by the learned Tribunal and thus the same be awarded by this Court.

(2.) Learned counsel for the management contends that a petition under Section 33-C (2) of the Industrial Disputes Act, 1947 (in short the ID Act) is executary in nature and is not maintainable without an independent adjudication under Section 10 of the ID Act. No Tribunal can determine the amount under these proceedings. The benefit sought under Section 33-C(2) of the ID Act flows from a pre-existing right. Thus, the application before the Industrial Tribunal was beyond its jurisdiction. Reliance is placed on State of U.P. & Anr. Vs. Brijpal Singh, 2005 8 SCC 58; State Bank of India Vs. Ram Chandra Dubey & Ors., 2001 1 SCC 73; U.P. State Road Transport Corporation Vs. Birendra Bhandari, 2006 10 SCC 211 and Hamdard (Wakf) Laboratories Vs. Deputy Labour Commissioner & Ors., 2007 5 SCC 281. It is further contended that the adjudication as to whether the Pilot was a workman or not could not have been conducted by the Tribunal in a petition under Section 33-C (2) ID Act and the said adjudication having not taken place as either no petition was filed under Section10 ID Act or the same was dismissed in default, the workman were not entitled to any relief. Reliance is placed on D. Krishnan & Anr. Vs. Special Officer, Vellore Cooperative Sugar Mill & Anr., 2008 7 SCC 22; Municipal Corporation of Delhi Vs. Ganesh Razak, 1995 1 SCC 235. It is next contended that the Pilots/workmen Manjit Singh, Pritam Singh and N.D. Kathuria were not workmen as they were performing supervisory functions. Reliance is also placed on Captain R.Khosla (Capt.) Vs. Jetlite India Ltd. (ID No. 24/2000 decided on 7 th September, 2012 by the Central Government Industrial Tribunal-cum-L/C-II, Govt. of India) wherein the Tribunal held that a Pilot is not a workman and hence the Tribunal cannot take contradictory stands. It is further contended that the Pilots/workmen Manjit Singh, Pritam Singh and N.D. Kathuria refused to fly the aircraft and due to this act of indiscipline their services were terminated. Relying on the definition of the retrenchment and Section 2(oo) of the ID Act, it is stated that when the termination is by way of a punishment inflicted in disciplinary action, the same does not amount to retrenchment and would not attract the provisions of Chapter V of the ID Act. Thus, the criteria stipulated under Section 33-C of the ID Act were not satisfied. Since the issues raised by the management show that the Tribunal had no jurisdiction to entertain the petitions, the impugned orders are a nullity. It is further stated that a petition under Section 10 ID Act filed by Manjit Singh and the one filed by N.D. Kathuria against the termination were dismissed for non-prosecution. The petition of Pritam Singh under Section 10 of the ID Act has also been dismissed, which he has challenged by way of W.P.(C) 1490/2012. Distinguishing the judgment of this Court in Mathur Aviation Vs. Lt. Governor, Delhi and Ors., 1977 2 LLJ 255 it is stated that in the said case the Pilot was performing the duties of aerial spray and thus had no supervisory or managerial functions and the said decision is not an authority that a Pilot is a workman. Further in the present case the three Pilots/workmen were appointed as commanders whose duties have been defined in the operation manual which included the safety of the aircraft and its occupants during the flight, authority to take such measures as are necessary in this regard and the Commander was responsible for order and discipline on Board. Reliance is placed on Rule 141 of the Aircraft Rules which came into force after the judgment was delivered in Mathur Aviation . Even if the management had not placed on record the duties of the Commander, the same being statutory rules, it was the duty of the Court to have looked into Rule 141 of the Aircraft Rules which prescribes the duties of a Pilot in command. Further the onus was on the three occupants to prove that they were workman which onus has not been discharged by them. The written statement filed by the management before the Tribunal clearly demonstrated that the claim was highly exaggerated. The Pilots/workmen had accepted the reduced salary. Hence the impugned orders be set aside.

(3.) Learned counsel for the Pilots/workmen Manjit Singh, Pritam Singh and N.D. Kathuria states that the stand of the Management that the Pilots/workmen were not workmen was not taken in the written statement. Belated applications for amendment of the written statements were filed wherein all the issues now being raised were raised, however the learned counsel for the management did not press those issues and only pressed the issue with regard to the calculation and sought, amendment in the written statement relating to calculation. Thus the legal issues having not been pressed before the Tribunal, the management cannot raise the same now before this Court in a petition under Article 226 of the Constitution of India. The office order dated 14 th October 1996 relied upon by the management was never signed either by Manjit Singh or Pritam Singh or N.D. Kathuria. The same was signed by one M.P. Singh and thus had no application to the Pilots/workmen herein. No doubt in the impugned order relating to Manjit Singh an error has crept, however the same can be rectified before this Court and learned counsel reiterates that the claim of Manjit Singh was only for Rs. 8,71,217/-. The chart along with the operation manual of the management has been shown to contend that the workmen herein were Pilots in the lower rank and above them were Deputy Labour Operations and Manager Operations who performed supervisory jurisdiction. Only Captain Pritam Singh was authorized as an examiner by a letter of DGCA. Thus the management witness falsely stated that Captain Manjit Singh was a examiner. Further even being an examiner does not show that the workman was performing supervisory functions. Reliance is placed on Mathur Aviation and Cedric Dsilva Vs. Union of India, 2007 LawSuit(Bom) 725 to contend that Pilot is a workman, his role is different from the Captain of a ship. The contention of the management that in a proceeding under Section 33-C(2) ID Act, the industrial Tribunal cannot determine whether the person is a workman or not is contrary to the decision of this Court in Jetlite (India) Ltd. Vs. Capt. R. Khosla,2009 108 DRJ 5580 wherein this Court directed the Tribunal to first decide the primary issue whether Captain R. Khosla is a workman or not before passing a final order in a proceeding under Section 33-C(2) of ID Act. This decision of the learned Single Judge of this Court has been upheld by the Division Bench in R.Khosla (Captain) Vs. Jetlite (India) Ltd., 2012 4 AD(Del) 452. Regarding the scope of Section 33- C(2) ID Act reliance is placed on Om Pati Vs. Delhi Transport Corporation, 2010 117 DRJ 454 and Union of India & Anr. Vs. Kankuben (dead) by LRs & Ors., 2006 9 SCC 292 and it is stated that the case of the Pilots/workmen was based on three letters of the management and thus these being preexisting rights, no adjudication was required thereon. The circulars were duly exhibited which were not disputed except one which was also admitted by the management witness in his cross-examination. The claim of the Pilots/workmen was under Section 33-C(2) unlike Section 33-C(1) and thus no adjudication in the form of an enquiry was required. Reliance is placed on State Bank of India Vs. Ram Chandra Dubey and Ors., 2006 10 SCC 211; M/s. Fabril Gasosa Vs. Labour Commissioner & Ors., 1997 AIR(SC) 954 and D.S. Gupta Contracts (P) Ltd. Vs. Labour Commissioner Delhi & Ors., 1997 69 DLT 950. It is next contended that the scope of interference in a proceeding under Article 226 of the Constitution of India is limited and only in case of jurisdictional error this Court will set aside the impugned order. Reliance is placed on M/s. Allied Equipment & Services and Ors. Vs. Debt Recovery Tribunal & Anr., 2002 AIR(Del) 201. Further the issues now being raised having not been raised before the learned Tribunal inasmuch as the amendments sought in the written statement were not pressed by the counsel for the management, these issues cannot be now raised by the management in the present proceedings. Reliance is placed on Management of Horticulture/ Forest Department, Govt. of NCT of Delhi Vs. Presiding Officer & Anr., 2009 157 DLT 623.