AIR INDIA LTD Vs. SHASHIKALA JATAV

JUDGEMENT

(1.) The litigation between the appellant and respondent No. 1 (hereinafter "the respondent") is going on since last two decades. The disciplinary proceedings were initiated against the respondent in the year 1990 by the appellant-Air India on the ground that respondent absented herself on the expiry of leave which was granted to her. She was pregnant at that time and delivered a child later on. By this time even the concerned child has become major, having completed twenty years of age. Still the legal matter is going on between the appellant and the respondent who was appointed as an Air Hostess in Air India.

(2.) The respondent at the relevant time was serving as a Air Hostess in the Air India. Respondent was employed as a Trainee Air Hostess with the Appellant on 17th February, 1983. Initially she had applied for earned leave w.e.f. 1st June, 1988 to 1st July, 1988. Subsequently she had applied for extension of leave on 2nd July, 1988 and such extension of leave was applied from time to time. It seems, in the meanwhile, the respondent became pregnant and she had applied for maternity leave. The maternity leave was sanctioned upto 10th May, 1990. It is pointed out by the learned Counsel for the appellant that even during the pregnancy period till a child is delivered, as per the rules maternity leave is sanctioned. The respondent was asked by the appellant thereafter to resume duty by 10th October, 1990. She had not resumed duty on the ground that she was required to look after the infant child and in the meanwhile she also conceived second pregnancy. This resulted into initiation of departmental enquiry against the respondent. During the course of hearing it is pointed out by the learned Counsel for the parties that an Air Hostess is entitled to take maternity leave twice during her service period. Since the departmental enquiry was initiated against the respondent under the Model Standing Orders (Central) on the ground that she remained absent without leave for more than 10 days, it may amount to wilful insubordination. The respondent had not participated in the enquiry and, therefore, ex-parte enquiry was conducted and ultimately she was dismissed from the services. The said dismissal order was passed on 11th December, 1992. The respondent raised an industrial dispute challenging the said order which was referred to the Central Government Industrial Tribunal by way of Reference No. CGIT-11 of 1998. The Tribunal by its order dated 18th August, 2003 set aside the dismissal order and granted reinstatement without back wages. The Tribunal set aside the dismissal order on the ground that the order of dismissal was passed by the Deputy Director, In flight Services, who was not competent to pass an order of punishment. The Tribunal has relied upon the Model Standing Order in this connection and ultimately found that the Deputy Director was not competent to pass such an order. The aforesaid order of reinstatement was challenged by the appellant by way of Writ Petition being Writ Petition No. 1991 of 2004. The learned single Judge dismissed the said writ petition against which the present appeal is filed. During the pendency of this Appeal, the appellant has complied with the provisions of Section 17-B of the Industrial Disputes Act, 1947 and is paying last drawn salary to the present respondent.

(3.) Mr. Talsania, learned senior counsel appearing for the appellant, has challenged the order of the Industrial Tribunal which is confirmed by the learned single Judge on the ground that the Deputy Director is a higher authority so far as appellant is concerned and, therefore, even if the Deputy Director cannot be said to be a disciplinary authority in service jurisprudence, an authority higher than the disciplinary authority, can always act either as a disciplinary authority and may pass appropriate punishment order. Mr. Talsania further submitted that at the relevant time Service Regulations were made applicable but subsequently in view of the judgment of the Delhi High Court in the case of Air India v. Union of India and Ors., 1991 LabIC 451 wherein it is held that the provisions of the Industrial Employment (Standing Orders) Act, 1946 would be applicable to the employees of Air India, that the departmental enquiry was continued against the respondent as per the Model Standing Orders. It is submitted by Mr. Talsania that in fact the Deputy Director is two stages above the Manager, who is the disciplinary authority under the Model Standing Orders and according to him the higher authority or even the appellate authority can pass an order of punishment.