HARISH CHANDRA KAPOOR Vs. AIR INDIA

JUDGEMENT

(1.) This petition under Article 226 of the Constitution impugns the imposition and continuance of a decision of enforced leave upon the petitioner a Deputy Managing Director of respondent No. 1 hereinafter to be referred to as "Air India"/"Corporation" upon a direction given by the second respondent, which is the Union of India.

(2.) Air India is one of the two Corporations established under section 3 of the Air Corporations Act, 1953 (AC Act). At the relevant time, the Managing Director of the Corporation was one Captain Bose and the Chairman of the Board of Directors Dr. Sidhu. Later on, Mr. Rajan Jaitley took over as the Managing Director and Dr. Sidhus tenure came to an end with the appointment of a regular Chairman Mr. Ratan Tata. The AC Act vests the power of general superintendence, direction, management of affairs and business of the Corporation in a Board of Directors. Section 34 of this Act empowers the Central Government to give to Air India directions as to the exercise and performance of its functions. The recipient Corporation is enjoyed to give effect to directions issued by the Central Government. The expression "Central Government" is not defined in the AC Act. For that reason one goes to the General Clauses Act, 1987 (Act No. 10 of 1897). Section 8 of Act 10 of 1897 gives a long list of definitions of words of common occurrence in different Central Acts and Regulations. The definitions given in section 3 are to have effect, unless, "there is anything repugnant in the subject or context". By sub-section 3(8) of Act 10 of 1897, the Central Government in relation to the Act would mean the "President". Section 45 of the AC Act empowers the Corporation to make Regulations not inconsistent with the Act or the Rules framed thereunder. The power to frame Regulations embraces various subjects including the terms and conditions of service of officers and other employees of the Corporation other than the Managing Director and Officers of any category other than those referred to in section 44. The Regulations attain force only if made with the previous approval of the Central Government. The Corporation has with previous approval of the Central Government framed what are known as "Air India Employees Service Regulations" hereinafter referred to as the "Regulations". In Clause 3(f) of the Regulations, the expression "Head of Department" is made to include a Deputy Managing Director. But it is made clear in Clause 3 that the definitions enumerated there cannot supersede the connotation or colour given to an expression or word by "context otherwise". Clause 8 of the Regulations provides for a period of probation of six months or twelve months as may be prescribed. The period afore-mentioned may be reduced by the Managing Director at his discretion or, "for reasons to be communicated in writing, extended by the competent authority". Clause 15 of the regulations lays it down that increments are dependent on business conditions as well as conduct and ability of the employee and no increment within a grade accrues as of right or as a matter of course. It is however made clear that increments can be withheld only for "reasons to be recorded in writing" and this after informing the employee concerned in writing of the grounds on which it is proposed to withhold increments and giving him a reasonable opportunity of showing cause against the action proposed to be taken. Clause 43 speacks of punishments which can be imposed on employees of the Corporation. These number as many as eight. Clause 43-A empowers the suspension of an employee pending an enquiry into misconduct ascribed to him. The order of suspension has to be in writing and is to be followed "as soon as possible by a charge sheet setting out the misconduct alleged against the employee". Clause 44 provides for an adequate opportunity to the employee to defend himself before he is awarded any punishment, except the punishment of censure. The age of retirement prescribed by Clause 46 is in case of employees like the petitioner, 58 years. Schedule I to the Regulations makes it clear that in relation to five of the penalties specified in Clause 43, the authority competent to impose the said penalties vis-a-vis a Deputy Managing Director, would, be the Managing Director. Against the punishment imposed under any of the five different heads the affected Deputy Managing Director has a right of appeal to the Chairman. The Chairman can impose all the eight penalties listed in Clause 43 and the aggrieved employee has a right of appeal to the Corporation which means, the Board of Directors appointed under section 4 of the AC Act. Acting under section 40 of the AC Act the Air India has enumerated delegation of financial and administrative powers under instruments of delegation effective as from January 1, 1987.

(3.) Petitioner joined the Corporations Engineering Department in December 1954. His academic qualifications were Inter-Science with Physics, Chemistry and Mathematics from Calcutta University. That apart, he had acquired a diploma in Aeronautical Engineering from Air Technical Training Institute, Dum Dum, Calcutta. In the course of service, petitioner acquired different qualifications and licenses. Joining as a Floor Engineer, petitioner went through the different ranks and from 1983 to 1985, was the Director of Engineering heading the Engineering and Maintenance Departments. On 1-10-1985, petitioner was promoted and appointed to the post of Deputy Managing Director. The Managing Director of the Corporation on 8-10-1985 issued a memorandum outlining the division of responsibilities as between him and the two Deputy Managing Directors. In so far as the petitioner was concerned, departments/divisions dealing with engineering, stores and purchases, ground services and civil works and properties were to report to him. Para 5 of the memorandum stated that the administration and establishment matters pertaining to their respective departments would be co-ordinated by the Deputy Managing Director concerned. The Director of Engineering who is the head of department concerned with the Engineering Section has duties and responsibilities which are set out at page 94 of the petition compilation. This compilation is distinct from another which is the documents compilation. Briefly, page 94 speaks of the Director of Engineering being responsible for the overall functioning of the Engineering Department. His specific functions include the evolving and issuance of policy directives and instructions in respect of maintenance and overhaul programmes to meet proper airworthiness and safety standards.