Shireen Dubash (Ms.) vs Air India Ltd.

V.M. Kanade, J.—Petitioner has filed this petition under Article 226 of the Constitution of India, seeking appropriate writ, order or direction directing respondents to pay to the Petitioner a sum of Rs. 6,97,834/- with interest.

Brief facts which are relevant for the purpose of deciding this petition are as under:--

The petitioner joined services of respondents-Air India on 1.10.1975 as an Airhostess. She was, however, suspended from service on 25.8.1997, pending departmental enquiry. The petitioner challenged the said order of suspension by filing Writ Petition No. 503 of 1998 which was allowed by this Court on 3.3.1998 and respondents were directed to withdraw the order of suspension and take back the petitioner in service with full emoluments. The grievance of the petitioner is that though she was taken back in service, payment was made only in respect of monthly wages in Indian Rupee.

The petitioner, therefore, filed Contempt Petition No. 30 of 1998 alleging that following allowances were not paid by the respondents:--

(i) Performance Linked Incentive Allowance.

(ii) Cabin Crew Productivity Allowance

(iii) Sky Bazaar Allowance.

(iv) Hourly Payment Flying Allowance which includes layover meal allowance and supplementary layover meal allowance.

The Contempt Petition was disposed of by order dated 16.7.1998 and a direction was given to respondent No. 1 to pay all allowances to the petitioner except for Sky Bazaar Allowance for a period from 3.3.1998 to 21.5.1998 as also Performance Linked Incentive Allowance.

In view of the order passed by the learned Single Judge in the Contempt Petition, respondents made part payment of the Performance Linked Incentive Allowance, Cabin Crew Productivity Allowance, Sky Bazaar Allowance and a part of Hourly Payment Flying Allowance. The case of the petitioner was that certain facts were not brought to the notice of the learned Single Judge and, therefore, additional payment which was due and payable to the petitioner was not directed to be paid by the learned Single Judge. According to the Petitioner, she was entitled to get total amount of Rs. 6,97,834 which she had calculated as follows:--

(a) Rs. 6,72,583/- towards the payment of Hourly payment flying allowance including lay-over meal allowance and supplementary lay-over meal allowance.

(b) Performance linked incentive allowance Rs. 18,217/-

(c) Sky Bazaar allowance Rs. 7,034/-

She, therefore, filed an application for speaking to the minutes of the order. However, the learned Single Judge who had decided the Contempt Petition declined to grant any further reliefs and granted liberty to take out appropriate proceedings. Petitioner, therefore, filed Writ Petition No. 1442 of 2001 which was disposed of by order dated 1.4.2002 and the petitioner was directed to make appropriate representation to the respondents for redressal of her grievances. Accordingly, the petitioner made a representation dated 16.4.2002 to the Managing Director and to the Director, In-flight Service Department of the respondents, setting out the amounts due and payable. It is the case of the petitioner that despite repeated reminders and applications to the respondents, they have failed to decide the said representation. She has, therefore, filed this writ petition under Article 226 of the Constituted of India.

Respondents filed their detailed affidavit-in-reply. In the reply, respondent have contended that the petitioner has been paid all admissible allowances during the period of her suspension in accordance with the Rules and Regulations applicable tote in terms of the order dated 16.7.1998 passed by this Court. Respondents have furnished details of the amount which was paid to the petitioner. Respondents have further contended that the allowances pertaining to layover meal allowance and supplementary layover meal allowance are not admissible allowances payable to the petitioner. It is contended that these allowances are paid to the Cabin Crew as reimbursement to sustain themselves at Lay-over Station and since the petitioner had not undertaken flying duties during the period of her suspension, the question of paying the said allowances does not arise in her case. It is contended that even though the respondents were not directed to pay the hourly payment to the petitioner during her suspension period, Respondents still paid her the said allowances on the basis of average flying hours as paid in the case of Sr. Check Airhostesses It is further contended that against the order passed by the learned Single Judge dated 16.7.1998, respondents have filed an appeal which is admitted and is pending for hearing and final disposal. It is then contended that written representation which was made by the petitioner dated 16.4.2002 to the Managing Director as well as to the Director In-Flight Service Department of the respondents was carefully examined and the petitioner was informed by letter dated 29.11.2002, setting out the reasons for not being entitled to the allowances churned by her in her said representation dated 16.4.2002.

We have heard the learned Senior Counsel appearing on behalf of the petitioner and the learned Senior Counsel appearing on behalf of the respondents.

The petitioner is seeking an appropriate writ, order and direction directing Respondents to pay sum of Rs. 6,97,834/- with interest. It is an admitted position that pursuant to the order passed by this Court in Writ Petition No. 503 of 1998 dated 33.1998, the petitioner was reinstated in service with further direction to give her full emoluments. Petitioner filed Contempt Petition being aggrieved by non-payment of the following wages:--

(i) Performance Linked Incentive Allowance.

(ii) Cabin Crew Productivity Allowance.

(iii) Sky Bazaar Allowance.

(iv) Hourly Payment Plying allowance which includes lay-over meal allowance and supplementary lay-over meal allowance.

The learned Single Judge by order dated 16.7.1998 clearly indicated that the petitioner was not entitled to get Sky Bazaar Allowance and Performance Linked Incentive Allowance. The grievance of the petitioner is that though the learned Single Judge had observed that the petitioner was entitled to receive all allowances payable to her during the aforesaid suspension period, while itemizing the allowances to which the petitioner was entitled, the learned Single Judge had not observed that the petitioner was entitled to Hourly Payment Flying Allowance which included lay-over meal allowance and supplementary layover meal allowance. Admittedly, petitioner has not challenged the order passed by the learned Single Judge. On the other hand, respondents have challenged the said order and appeal against the said order is still pending in this Court. The respondents in their letter dated 29.11.2002 while dismissing the representation filed by the petitioner have observed that as far as lay-over and meal allowance and supplementary layover and meal allowance payments are concerned, these payments are made to Cabin Crew as reimbursement and since the petitioner was not on duty at the relevant time, respondents have refused to make the said payment to the petitioner. In our view, respondents have rightly rejected the claim of the Petitioner since the said payment, obviously, is made to the Cabin Crew who are on flight duty. During the period of suspension, the petitioner was not on flight duty and, as such, the reimbursements which were made to the Cabin Crew while they were on flight duty could not have been claimed by the petitioner. So far as the claim of hourly rate of payment on the presumption of 80 hours of flying duty per month is concerned, respondents have informed the petitioner that they had paid hourly rate of payment taking into account the average hours for Sr. Check Air Hostess as 56 hours. It is contended that the petitioner was not eligible to receive the hourly rate allowance, though the respondents had inadvertently paid the said allowance to the petitioner.

The learned Senior Counsel appearing on behalf of the petitioner has relied on several judgments of the Apex Court on the question of admissibility of petition where disputed questions of fact are involved. He relied on the judgment of the Apex Court in ABL International Ltd. and Another Vs. Export Credit Guarantee Corporation of India Ltd. and Others, He also relied on the judgment of the Apex Court in Uttaranchal Road Transport Corpn. and Others Vs. Mansaram Nainwal, on the question of law of precedent.

There cannot be any dispute regarding the ratio of the said judgments. However, ratio of the said judgments, in our view, will not apply to the facts of the present case. In the present case, the learned Single Judge in his order dated 3.3.1998 was pleased to grant some of the allowances which were claimed by the petitioner. It is the case of the petitioner that the learned Single Judge had wrongly not itemized certain allowances which were due and payable to the petitioner. Petitioner did not challenge the said order of the learned Single Judge. On the contrary, respondents have challenged the said order and the appeal is pending in this Court. It is the case of the petitioner that some of the allowances were payable though not itemized by the learned Single Judge, whereas the respondents in their reply and in the decision which was taken by them on the representation made by the petitioner have denied this fact. In our view, respondents, therefore, have rightly rejected the claim of the petitioner. As such, there is no merit in the submissions made by the learned Senior Counsel appearing on behalf of the petitioner. Petition is dismissed. Rule is discharged.