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2005 DIGILAW 805 (KER)

Sahara Airlines Limited v. Philip C. Abraham

2005-12-20

C.N.RAMACHANDRAN NAIR

body2005
Judgment :- The petitioner, a public limited company engaged in civil, aviation business, is challenging Ext.P13 Award by which the Labour Court, Ernakulam, has declared that petitioner has illegally removed the first respondent from service with direction to the petitioner to reinstate him full back wages but leaving freedom to the petitioner to retrench him after following the procedure contemplated under the I.D.Act. 2. I have heard senior counsel Sri. B.S. Krishnan appearing for the petitioner and senior counsel Sri. Pathrose Mathai appearing for the first respondent. 3. The facts stated by the petitioner, most of which are admitted, are the following. The first respondent who was in the Indian Air Force, after retirement served some other companies and thereafter he was appointed by the petitioner as Aircraft Maintenance Engineer on 11.8.1999. He was above 58 years of age when he joined the petitioner-company and his appointment was on one year training/probation on a monthly salary of Rs.36,000/-. After completion of one year first respondent was given annual increment of Rs.1000/- and was given some special increments thereafter. The first respondent was licensed to maintain. Boeing 737-200-series aircrafts which were operated by the petitioner at the time of taking him in service. After 737-200-series planes became old and outdated and were grounded, petitioner-company acquired more advanced Boeing 737 planes of 400 and 700 series for which the first respondent was not qualified to do servicing or maintenance. However, he was given an opportunity to acquire technical training in maintenance of the more advance planes acquired by the petitioner and accordingly the first respondent was sent for training. However, unfortunately first respondent did not qualify in the training and could not get the licence for maintenance of the more advanced of 200 series of Boeing 737 aircrafts, petitioner did not require the services of the first respondent, who did not have the licence to certify the air-worthiness of any of the planes operated by the petitioner. Therefore petitioner wrote to the first respondent requesting him to get relieved from service offering one month’s extra salary in addition to settlement of dues. The first respondent however opted to resign from the services of the petitioner and he accordingly sent Ext.P3 letter of resignation on 13.12.2000. Thereafter the first respondent accepted the benefits offered by the petitioner and got relieved with immediate effect. The first respondent however opted to resign from the services of the petitioner and he accordingly sent Ext.P3 letter of resignation on 13.12.2000. Thereafter the first respondent accepted the benefits offered by the petitioner and got relieved with immediate effect. However, after about eight months from resignation and settlement of account the first respondent complained to the Regional Labour Commissioner, New Delhi stating that he was illegally terminated from service by the petitioner, and therefore sought for conciliation. Since first respondent was residing in South, he requested for transfer of the conciliation proceedings to an Officer in the South which the Government of India granted. Accordingly, conciliation was held by the Regional Labour Commissioner, Ernakulam, who after considering the case reported failure to the Government and the Government in true referred the Industrial Dispute for decision by the Labour Court, Ernakulam. The Labour Court, Ernakulam, after hearing both sides, came to the conclusion that first respondent was a “workman” and he was illegally terminated from service by the petitioner and consequently the Labour Court directed the petitioner to reinstate him with full backwages but with freedom to retrench him thereafter by following the procedure prescribed this Court and during the pendency of the WPC, this court granted stay against enforcement of the Award. 4. Senior counsel appearing for the petitioner contented that first respondent was drawing a salary of Rs.37500/- per month and was above 60 years of age when he was asked to leave the service. It is the specific case of the petitioner that the first respondent was not employed on regular basis as at the time of his employment he was above 58 years of age, which fact is not disputed by the first respondent. In fact the first respondent was inducted by the petitioner only on account of shortage of qualified aircrat maintenance Engineers and the case of the petitioner is that appointment of the first respondent was purely contractual because there is no provision for employing persons above 58 years of age in regular service when the retirement age of employees under the standing order of the petitioner is 60 years. The contention of the petitioner is that so long as the first respondent’s licence was valid, his services were availed by the petitioner company. The contention of the petitioner is that so long as the first respondent’s licence was valid, his services were availed by the petitioner company. However, as and when old and outdated Boeing 737-200-series of aircrafts were grounded and petitioner was not allowed to fly the said series of planes for passenger-transport, the first respondent’s services were no longer required, as the first respondent did not have licence to certify the air-worthiness of the new planes bought by the petitioner, namely, Boeing 737-400, 737-700, etc, series of aircrafts. Even though first respondent was given training to acquire licence to maintain modern aircrafts acquired by the petitioner, he failed to get licence and therefore remained disqualified to certify air-worthiness of planes as an Aircraft Maintenance Engineer. The petitioner’s case is that licence is required for without such fitness certificate, the petitioner is not allowed to operate flights with such aircrafts. It is in these circumstances, that first respondent resigned at the request of the petitioner, but later decided to contest it as dismissal, or termination, is the case of the petitioner. 5. Even though petitioner has raised various technical contentions about the legality and propriety of conciliation, the transfer of conciliation to Kerala at the request of the first respondent, and the jurisdiction of the Labour Court to decide the referred case I do not think any such challenge should be entertained now at this distance of time because after reference of the I.D. by Govt., the Labour court decided the industrial dispute on merits. Therefore the technical objection are overruled and I proceed to decide the case on merits. 6. The first respondent has no claim that he has valid licence to certify the air-worthiness of any of the aircrafts operated by the petitioner during his release from service or thereafter. In fact it is also an admitted fact that first respondent was given an opportunity by the petitioner-company to train in new aircrafts and to obtain licence for continuing his employment. Unfortunately, the first respondent did not successfully complete the training and could not obtain licence to maintain modern aircrafts operated by the petitioner. Consequently, the first respondent disqualified himself for holding the post assigned to him, that is Aircraft Maintenance Engineer, whose main responsibility is to certify air-worthiness of planes. Unfortunately, the first respondent did not successfully complete the training and could not obtain licence to maintain modern aircrafts operated by the petitioner. Consequently, the first respondent disqualified himself for holding the post assigned to him, that is Aircraft Maintenance Engineer, whose main responsibility is to certify air-worthiness of planes. In this context, the petitioner decided to release the first respondent from service, which was avoided by the first respondent by his resignation, as stated above. The question arising in this case have to be considered in the light of these facts, which are not disputed by the first respondent. 7. The ground of challenge raised by the petitioner against Ext.P13 Award is against the finding of the Labour court that the first respondent is a “workman” as defined under section 2(s) of the Industrial Disputes Act, 1947, hereinafter called the “Act”. In this regard, the specific contention of the petitioner is that the first respondent was drawing a monthly salary of Rs.37500/-and was engaged in purely supervisory work. Since the salary of the first respondent, who was a supervisory staff, was above the statutory limit of Rs.1,600/- per month, the first respondent is not a workman by virtue of the exception clause provided under section 2(s)(i) of the Act, is petitioner’s case. As against this argument of the petitioner, the argument of the first respondent’s senior counsel is that even though monthly salary of the first respondent was Rs.37,500/- he was not engaged in any supervisory work. In other words his case is that first respondent is a workman, pure and simple, and was engaged in skilled work as a technician. It is seen in paragraph 8 of the Award of the Labour Court that finding in this regard is entered in favour of the first respondent merely because the petitioner has not given proper evidence or explanation in support of their contention. Counsel for the petitioner has furnished a copy of the proof affidavit filed before the Labour Court, which show the hierarchy of technical staff engaged in Aircraft Maintenance Department. It is seen therein that the Head of the Department is Maintenance Manager and No.2 is Assistant Maintenance Manager. Apart from these two persons, the Department has 17 Aircraft Maintenance Engineers, 14 foreman, 13 senior Technicians, 10 Technicians, and 10 helpers. It is seen therein that the Head of the Department is Maintenance Manager and No.2 is Assistant Maintenance Manager. Apart from these two persons, the Department has 17 Aircraft Maintenance Engineers, 14 foreman, 13 senior Technicians, 10 Technicians, and 10 helpers. Therefore the position of the first respondent is immediately below the managerial staff and below him technicians are employed at three levels and besides those technicians last level helpers are also provided by the petitioner-company. Obviously when technicians are working under the first respondent at levels, his job as a qualified Air Craft Maintenance Engineer is to supervise their work. Besides the factual position established by the petitioner, it is common knowledge that Aircraft Engineer cannot do all technical work by himself. His job is essentially to supervise the work done by technicians and to give them appropriate instructions in the matter. Of course he can take tools in his hands and get into the shoes of a technician in an emergency or when subordinate staff was not available or found ineffective in his work, which is only incidental. Therefore, the finding of the Labour Court is factually incorrect and it only shows that the Labour Court is thoroughly unimaginative because no one can visualize that the entire technical work in the maintenance of aircraft is personally done by Aircraft Engineers. It is common knowledge that industries engaged in manufacture repair maintainer etc., normally employ technicians at three levels based on educational qualification; the ITI holders at lowest level, diploma holders above them and Engineering degree holders still above. Engineers and even diploma holders normally serve as supervisory technicians. Of course nothing bars employment of an Engineer as a technician. However, in this case from the hierarchy of technical staff maintained by petitioner, I find nothing exceptional about first respondent and he was only a senior level supervisory official. Even though petitioner has relied on several decisions of the Supreme Court, one single decision in B.S.O.S. & D.CO. V. Management Staff Association, A.I.R. 1971 SC 922 is sufficient to establish their case. Even though petitioner has relied on several decisions of the Supreme Court, one single decision in B.S.O.S. & D.CO. V. Management Staff Association, A.I.R. 1971 SC 922 is sufficient to establish their case. The supreme court in the said decision clearly held that even if an Engineer essentially engaged in supervisory work does some work of his own, it is only incidental to main responsibility that is to diagnose the defects, inspect the work done by technicians subordinate to him and the same will not take him out of the category of supervisory staff. Even though the decision of a Labour court may not bind this court the same can be relied on for ascertaining facts from similar cases. It is seen in the decision in Indamer Company P.Ltd. V. Barinde (1958) II LLJ 556 the Labour Court found as follow: When the main duties of an aircraft maintenance engineer employed by an aircraft company were to inspect the aircraft and aero-engines before the flight and to inspect the aircraft and air-worthiness and where their duties mainly consisted of inspecting and checking the jobs and repairs done by skilled mechanics who work under them, such employee must be considered to be discharging duties of a supervisory nature. The manual work which they had to do must be held to be only incidental or ancillary to their main supervisory duty, as the supervisory function involved some degree of initiating and intelligent work. As he was drawing a salary of more than Rs.500/- per month, he would fall within the exception mentioned in section 2 (S)(4) of the Act and hence not a “workman” within the meaning of section 2(S)(4) of the Act. In view of the above findings and the decisions above referred, the conclusion that the first respondent was only a supervisory staff drawing a monthly salary of Rs.37,500/- is inescapable and consequently he is outside the definition of “workman” as defined under section 2(S) of the Act. 8. I am amazed to notice the relief granted by the Labour Court, that is, reinstatement of first respondent after declaring him as continuously in service. The first respondent has admitted that he does not have a valid license to maintain any aircraft operated by the petitioner and so much so, he was disqualified to hold the post that was assigned to him, and which he resigned. The first respondent has admitted that he does not have a valid license to maintain any aircraft operated by the petitioner and so much so, he was disqualified to hold the post that was assigned to him, and which he resigned. Obviously, if this direction is complied with by the petitioner, petitioner will be under compulsion to employ a person as Aircraft Maintenance Engineer who does not have licence which is in violation of norms and Rules and if done probably the petitioner will lose the licence to operate their civil aircrafts. In any case, in view of the above finding that the first respondent is not a workman, the Award passed by the Labour Court is set aside. Since I find the first respondent has voluntarily resigned admitting his disqualification to continue in the job held by him and since petitioner has given eligible benefits, the first respondent is not entitled to any alternate relief. W.P. is therefore allowed vacating the Award of the Labour Court Ernakulam.