KENNETH KHAN Vs. AIR INDIA LTD

JUDGEMENT

(1.) Two questions arise which are common to both these petitions and, therefore, both these petitions are being heard and decided together. The Petitioners in these two petitions were working as pilots in Air India. The petitioner in the first petition, i. e. Writ petition No. 78 of 2004, was the President of india Pilots Guilt (IPG) at the relevant time, whereas the Petitioner in the second petition, i. e. Writ Petition No. 205 of 2004, was its member.

(2.) Following upon the spread of an epidemic known as SARS in South East Asia and the Iraq war in the Middle East, the two petitioners declined to operate the flights on account of a decision of this IPG. That led to the departmental enquiries against both of them by the Respondents. The date of retirement of both the Petitioners was 31st December, 2003. The enquiries could not be completed till then for which both the parties hold each other responsible. The contention of both the petitioners was that they are workmen within the definition of the said concept under the industrial Disputes Act, 1947 and are governed under the Industrial Employment (Standing orders) Act, 1946 and not under the Service regulations which applies to the executive staff. That being so, the enquiries could not be continued beyond the dates of their retirement after completion of age Of 58 years.

(3.) These two petitions are filed to challenge the continuation of these enquiries beyond the dates of retirement. Both the petitions were admitted by a Division Bench on 26th February, 2004 and an interim stay was granted of the disciplinary enquiries pending disposal of the writ petitions. The Respondents were directed to release the amount of Provident fund to the Petitioners. Insofar as the amounts of Gratuity, Leave Encashment, Unpaid Wages including an allowance known as Shortfall allowance are concerned, the Respondents were directed to deposit the same in the Court. Initially withdrawal of a part of these amounts except the shortfall allowance was allowed. The two Petitioners were suspended pending inquiry but they were allowed to join back in view of an order of a Division Bench passed on 2nd may, 2003 on another writ petition. However, the Respondents did not give them flying duties and it is the contention of the Respondents that they are not entitled to this Shortfall Allowance which is claimed by the Petitioners as they were not given the flying duties but their juniors were given these duties. The two questions which arise in this matter are as follows :- (A) Whether the 1st Respondent is entitled to continue the departmental enquiry against the two Petitioners beyond their dates of superannuation (B) In the event the enquiries could not be continued, what would be the consequence thereof, particularly on the claim of the Petitioners to the Shortfall allowance