Airlines Allied Services Limited v. Ashok Kumar Malhotra

1. This review petition has been filed by the review petitioner (respondent, herein) seeking review of order / judgment dated April 6, 2021 passed by this Court in the above RFA being 433/2016, whereby this Court had partially allowed the appeal filed by the appellant by setting aside the Flying Allowance / Executive Allowance granted by the Trial Court in favour of the respondent. It was further held that the respondent shall be entitled to Freighter Allowance @₹30,000/- per month and ₹64,161/- under the heading „Other Payment‟ for the period November 2009 till January 12, 2010. Accordingly, in paragraph 44 of the impugned Judgment this Court has stated as under: “In view of the above and the appeal having been partially allowed in terms of this order, the respondent is directed to refund the excess amount received by him with interest by depositing the same in the Registry of this Court with intimation to the appellant and its counsel. The amount deposited by the respondent shall be released by the Registry to the appellant through its counsel. On being satisfied, after notifying the appellant, the Registry shall release, the lien on the TDRs submitted by the respondent as security.”

2. It is stated that the respondent had earlier filed an SLP before the Supreme Court against the impugned judgment which was decided by the Supreme Court vide order dated December 13, 2021, wherein it is stated as under: “Learned counsel for the petitioner seeks permission to withdraw the present special leave petition with liberty to file a review petition in the High Court. Permission is granted to withdraw the special leave petition along with the liberty to file a review petition in the High Court. We also grant liberty to the petitioner to challenge the impugned order in case the decision of the High Court is adverse to petitioner. The Special Leave Petition is dismissed as withdrawn.”

3. Since the respondent was granted liberty by the Supreme Court to file a review petition, it is pursuant thereto, the present review petition has been filed.

4. It has been submitted by Mr. Sanjeev Sahay, learned counsel appearing for the respondent that this Court did not consider the complete facts whilst partially allowing the RFA in favour of the appellant. It is his case that the appellant had previously admitted by way of a written statement that the Flight Related Allowances were made fixed after the amendment of FTEA w.e.f. August 1, 2006. According to him, this Court while deciding the appeal did not take into consideration the admission made by the appellant in its written statement. He submitted that this Court by not realising the same, has ruled in favour of the appellant by holding that the respondent was not entitled to Flight Allowance / Executive Allowance.

5. According to Mr. Sahay this Court has erred in concluding that the Flying / Executive Allowance, though fixed in nature, were not part of the salary dues of the respondent. He submitted that the appellant pleaded such facts and made such submissions, which were neither pleaded nor argued during trial before the Trial Court, i.e., the appellant went beyond the pleadings and came before this Court pleading different grounds, bringing forth a completely new facet than what was pleaded before the Trial Court.

6. Mr. Sahay further submitted that this Court also failed to take notice of the salary slips that were issued to the respondent by the appellant. It has been his case that salary slips issued were clear enough to reveal that the Flight Related Allowances were fixed and part of the salary, as pay and allowances due to the respondent. The salary certificate, in terms of the amended contract specifies that Flight Related Allowances are fixed and total emolument is also fixed. He submitted that even the amendment to FTEA in Article 7.01.02 provides for deductions from the salary, i.e., reasonable adjustments from pay and allowances, but only in case of unauthorized absenteeism by the Pilot. He submitted that the respondent‟s case never fell under any such category. Hence, the respondent was not entitled to any such deductions as per FTEA. He further submitted that, this Court should have taken note of the fact that respondent was unable to fly only on account of him being deemed unfit to fly. The respondent had salary slips to the effect wherein he was given all his allowances. Hence to hold in favour of the appellant by setting aside the judgment / decree of the Trial Court with regard to Flying / Executive Allowance goes not only against what has been provided in the salary slips but also against the amended FTEA as well.

7. He also submitted that this Court while deciding the RFA did not take into full consideration the impact of the change made after the amendment including the concept of equal pay for equal work. To avoid any more uncertainty, the pay, Flight / Executive Allowance and benefits thereof became fixed by virtue of the amendment to FTEA and moreover reasons attributable to a Pilot was changed to unauthorized absenteeism. Therefore, the amended FTEA and salary slips of the respondent clearly depict that the Flight Related Allowances were made fixed. The same was admitted by the appellant and subsequently proved before the Trial Court. So, he submitted, this Court‟s decision to treat some of the allowances as fixed while treating others as variable, without there being any particular basis, is incorrect.

8. He submitted that the essence of the review revolves around the findings of this Court that the appellant was correct in arbitrarily withholding and not paying the Flight Related Allowances, despite the respondent proving before the Trial Court that the same are fixed in nature and have been made part and parcel of the gross salary. He also submitted that Court had not considered the salary slips of the respondent which manifest that he is being paid flying allowances even when he has zero hours of flying in a month. He submitted, even scaling down of the amount due under the heading „other payments‟ on pro-rata basis was incorrect, therefore, the respondent is entitled to full amount as owed to him by the appellant originally.

9. According to Mr. Sahay, it is a well defined principle of law that parties cannot go beyond pleadings.

10. On the other hand, Mr. Abhinav Agnihotri, learned counsel appearing for the appellant would submit that the respondent has failed to make out a case for filing the review petition against the impugned judgment as the same does not bear any merit and is liable to be dismissed. According to him, the grounds contemplated under Order XLVII CPC of the Code of Civil Procedure, 1908 („CPC‟, for short) have not been made in the present case and as such the review petition is liable to be dismissed.

11. He contested the stand taken by the respondent that the appellant had admitted that the Flight Related Allowances have been made fixed after the amendment of FTEA dated August 1, 2006 and the said admission was not taken into consideration by this Court. According to him, the appellant had in the written statement clearly mentioned that as the respondent was not fit to serve as a Pilot, he was not liable to be paid any pay or allowances in terms of FTEA. However, as a gesture of goodwill, the appellant paid basic salary and other allowances to the respondent from September, 2009 till his termination. He submitted that as the respondent was declared unfit and was in breach of his representations lying in FTEA, the Flight Related Allowances were not paid to the respondent. Further, the fact that the Flight Related Allowances were variable is reflective from the „Letter of Agreement-Amendment‟ at Page 80 of the paperbook filed in RFA which provides the details of pay and allowances payable to the respondent, wherein, it is provided that the Flight Related Allowances are variable in nature. In effect, he submitted that the attempt of the respondent by filing this review is to re-open the facts by raising same grounds that were raised in the appeal.

12. That apart, he also submitted that a plea of misinterpretation of the contract does not fall within the realm of error apparent on the face of record, which would warrant interference of this Court. According to him, the case set up by the respondent that this Court had not considered the salary slips of the respondent which reveal that the respondent has been paid flying allowance is vague, as the respondent has not even filed any salary slips, which according to him have not been considered by this Court. Moreover, no such averments regarding the salary slips were made while arguing the appeal before this Court. He laid emphasis on the fact that the respondent was, declared unfit to serve as Pilot and in breach of representations and undertaking as embodied in Clause 1.01 of the FTEA. In fact, the Flight Related Allowances were not paid to the respondent from October, 2009 and freighter allowance from November, 2009 till his termination. Thus, as the respondent was not found fit to perform his duties as a Pilot, he was not entitled to any Flight Related Allowances which are in the very basic nature only liable to be paid once the Pilot is declared to be fit to fly.

13. In so far as the sub-clause (i) of Clause 7.01.02.[1] is concerned, the amended clause provided an additional condition when the deduction from the pay and allowances would be made in case of shortfall in flying hours, i.e., in case of unauthorized absenteeism. He submitted, the original condition continued to remain in force as the same is borne out from the fact that amended contract itself contains a provision at the end of the document which stated “the remaining terms and conditions of the existing contract will remain unchanged”. Even otherwise, the fact that respondent was unable to fly as a Pilot and perform his services / duties under the terms of the contract would render the respondent as being unauthorizedly absent. Therefore, he submitted that this Court in the impugned judgment has rightly held that the payment of allowances pre-supposes the respondent flying the aircraft and as per which the FTEA stipulated salary and allowances under different heads.

14. He also laid emphasis on the fact that though the appellant was will within its right to terminate the services of the respondent after he was declared unfit to fly, but as the respondent had requested for additional training to be provided, the appellant did not terminate the services of the respondent and even as a bona fide and gesture of goodwill, paid him the basic salary and certain other benefits even though the respondent was not entitled to any amount. However, he further submitted that as the respondent was not fit to perform his duties as a Pilot, he was not entitled to any Flight Related Allowances, which are in their very basic nature only liable to be paid if the Pilot is fit to fly.

15. Having heard the learned counsel for the parties and perused the record, it may be stated that the issues which are raised in the review petition have been dealt with by this Court in paragraphs 33 to 42 of the impugned judgment, which I reproduce as under: