Research › Search › Judgment

Delhi High Court · body

2006 DIGILAW 244 (DEL)

AIRPORT AUTHORITY OF INDIA v. KAMAL PARASHAR

2006-02-07

MADAN B.LOKUR, MARKANDEY KATJU

body2006
MARKANDEYA KATJU, CJ. ( 1 ) THIS writ appeal has been filed against the impugned judgment of the learned Single judge dated 2nd November, 1998, by which " the writ petition was ailowed. ( 2 ) HEARD learned counsel for the parties anc perused the record. ( 3 ) THE facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating the same, except where necessary. ( 4 ) IT is alleged in para 2 of the writ petition that the petitioner was originally appointed as assistant Aerodrome Officer with the Director general of Civil Aviation with effect from 4. 3. 1974 and he was subsequently promoted as Aerodrome Officer. ( 5 ) PARLIAMENT passed the National Airports authority Act in 1985 under which the Central government constituted the National Airports authority. Under Section 13 (3) of the Act, the employees holding office under the director General of Civil Aviation were treated as on deputation with the Authority on the same terms and conditions. The second proviso to Section 13 (3)of the Act reads as follows:"provided further that any such employee who has, in respect of the in his regular service, intimated within such time as may be specified in this behalf by the Authority his intention of not becoming a regular employee of the Authority, shall not be absorbed by the Authority. " ( 6 ) IT is alleged in para 7 of the writ petition that the petitioner submitted a representation on 31. 3. 1986 seeking his repatriation. He reiterated his request by another representation dated 4. 6. 1986 for repatriation to the office of the Director General of Civil aviation. Both these representations were addressed to the Director General of Civil aviation because till March, 1986 the National airports Authority had not started functioning. However, it is alleged by the petitioner that he did not receive any reply to the aforesaid representations/reminders. ( 7 ) IT is alleged in para 9 of the writ petition that the Director General of Civil Aviation by inter-departmental communication dated 4. 2. 1987 had approved the repatriation of the petitioner but it is alleged that this was suppressed and instead the Administrative officer of the National Airports Authority issued a Memorandum dated 11. 3. ( 7 ) IT is alleged in para 9 of the writ petition that the Director General of Civil Aviation by inter-departmental communication dated 4. 2. 1987 had approved the repatriation of the petitioner but it is alleged that this was suppressed and instead the Administrative officer of the National Airports Authority issued a Memorandum dated 11. 3. 1987 stating that the request of the petitioner for posting as priority Officer in the office to the Director general of Civil Aviation cannot be acceded to and that the petitioner was required to join his post at Varanasi immediately. ( 8 ) THE petitioner wrote a letter dated 23rd february, 1988 to the Director of Aerodromes stating that the insistence of the National airports Authority that the petitioner should join at Varanasi or face disciplinary action was uncalled for because the Director General of civil Aviation had already asked the Authority to relieve the, petitioner to enable him to join in the office of Director General of Civil Aviation. However, the petitioner received no reply. ( 9 ) IN para 11 of the petition, it is alleged that in 1991, the petitioner came to know that on or about 2. 10. 1989 the respondent No. 1/ authority had asked for his option for absorption in the service of the Authority or to seek repatriation. A number of employees who opted for repatriation were repatriated. However, it is alleged that the petitioner was not intimated by way of such a letter to reiterate his option for repatriation exercised earlier. ( 10 ) THE Chairman of the Authority then issued to the petitioner a Memorandum dated 11. 2. 1991 with a statement of articles of charges of misconduct for absenting from duty from Varanasi with effect from 15. 7. 1986. In reply, the petitioner pointed out that he had applied for his repatriation to the office of the Director General of Civil aviation and that the respondent No. 2 had accepted his request vide letter dated 4. 2. 1987. ( 11 ) THE petitioner attended the enquiry proceedings. The Enquiry Officer submitted his report dated 31. 8. 1992 against which the petitioner sent his representation dated 10. 10. 1992. it is alleged that thereafter for a period of three years, the petitioner had not heard anything from respondent No. 1. 2. 1987. ( 11 ) THE petitioner attended the enquiry proceedings. The Enquiry Officer submitted his report dated 31. 8. 1992 against which the petitioner sent his representation dated 10. 10. 1992. it is alleged that thereafter for a period of three years, the petitioner had not heard anything from respondent No. 1. ( 12 ) IT is alleged that the petitioner reported for duty in the office of the Director General of Civil Aviation but he was not allowed to join, hence he filled the writ petition praying for a direction to respondent NO. 2 to allow the petitioner to join duty and to treat the petition on its rolls and pay him full pay and allowances from July, 1982 onwards. The petitioner also prayed that the enquiry vide charge-sheet dated 11. 2. 1991 be held to be barred under the principles of estoppel, laches, waiver, etc. and to hold that the respondent no. 1 was incompetent to initiate the enquiry. ( 13 ) ON the facts of the case, it is evident that the charge-sheet dated 11. 2. 1991 was issued to the petitioner alleging that the petitioner was relieved of his duty with effect from 15. 7. 1986 and was asked to proceed on transfer to Varanasi but he remained absent from duty with effect from 15. 7. 1986 and from 1986 to 1997 he never reported for duty. ( 14 ) A counter-affidavit was filed by respondent no. 1, National Airports Authority, and we have perused the same. ( 15 ) IT is stated in the counter-affidavit that the petitioner had joined duty with the Director general of Civil Aviation on 22. 7. 1996 and hence the prayer sought in Clause (a) of the writ petition has already been granted. , ( 16 ) THE petitioner was relieved from the respondent No. 1/authority on 13. 3. 1995 and he has joined respondent No. 2. It is denied that the petitioner was ever denied joining duty by respondent No. 2. The petitioner never reported for his posting in Varanasi and hence he is not entitled to any pay or allowances from 15. 7. 1986. ( 17 ) IT has also been stated in the counter- affidavit that disciplinary proceeding had been initiated against the petitioner as he did not join at Varanasi. The petitioner never reported for his posting in Varanasi and hence he is not entitled to any pay or allowances from 15. 7. 1986. ( 17 ) IT has also been stated in the counter- affidavit that disciplinary proceeding had been initiated against the petitioner as he did not join at Varanasi. Since the disciplinary proceeding was pending at the time when the petitioner gave his option, hence, the request of the petitioner for repatriation was not permissible as per the guidelines issued by the Ministry of Civil Aviation. Hence, the petitioner was not given an option to be repatriated. It is denied that the petitioner was unlawfully retained by the Authority. However, subsequently, the respondent No. 1 had relieved the petitioner from its rolls vide letter dated 13. 3. 1995. ( 18 ) ON the facts of the case, we are of the opinion that this appeal has to be allowed. Admittedly, the respondent (writ petitioner) was transferred to Varanasi on 15. 7. 1986 and he should have joined there. Until and unless he was relieved by the Authority by a specific" order, he could not automatically deem it that he is again back in the service of director General of Civil Aviation. It was only when he joined the office of the Director general of Civil Aviation in 1986 that his repatriation became effective. A specific order of repatriation had to be passed by the authority before the writ petitioner could presume that he had been repatriated. That specific order of the Authority was passed only on 21. 2. 1995 and the petitioner was relieved from the service of the authority vide letter dated 13. 3. 1995. Hence, the petitioner should have not absented himself from his duties with the Authority till then. ( 19 ) IT may be mentioned that under Section 13 (3) of the Act, an employee working with the Director General of Civil Aviation is automatically placed on deputation with the authority. Thus, no order of deputation is required, and the deputation is automatic. Hence, the petitioner came on deputation with the Authority when the Act was passed, and the could not go back to the Director general of Civil Aviation unless relieved by the authority. ( 20 ) FOR the reason given above, this appeal is allowed. Thus, no order of deputation is required, and the deputation is automatic. Hence, the petitioner came on deputation with the Authority when the Act was passed, and the could not go back to the Director general of Civil Aviation unless relieved by the authority. ( 20 ) FOR the reason given above, this appeal is allowed. The impugned judgment of the learned single Judge is set aside and the writ petition is dismissed. .