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Non-reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1434 OF 2008

Shri Kamal Prashar ……Appellant

Versus

Airport Authority and Another.                   …. Respondents

AND

Civil Appeal No.1435 of 2008

Shri Kamal Prashar ….Appellant

Versus

National Airport Authority of India …Respondent

J U D G M E N T

Uday Umesh Lalit J.

1. Civil  Appeal No.1434 of 2008 seeks to challenge the judgment and

order  dated 07.02.2006 passed by the  High Court  of  Delhi  in  LPA

Nos.21 of 1999 and 314 of 2000 as well as the order dated 02.06.2006

in Review Application No.209 of 2006 arising from said judgment and

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order  dated  07.02.2006  in  so  far  as  LPA No.314  of  2000  was

concerned.  Civil Appeal No.1435 of 2008 seeks to challenge the order

dated  05.05.2006  passed  by  the  High  Court  of  Delhi  in  Review

Application  No.161 of  2006 arising  out  of  the  judgment  and order

dated  07.02.2006  in  so  far  as  LPA No.21  of  1999  was  concerned.

Since both these appeals arise out of the same proceedings they are

being dealt with and disposed of by this common judgment.  

2. The  appellant  was  appointed  as  Assistant  Aerodrome  Officer  with

Director  General  Civil  Aviation  (“DGCA” for  short)  on 04.03.1974

and was promoted to the post of Aerodrome Officer in 1980.  He was

transferred to Leh by order dated 23.05.1985 but said transfer could

not take place as proper accommodation was not available  at Leh and

the appellant continued to be stationed at Delhi. In the year 1985, the

National Airport Authority Act,  1985 (Act 64 of 1985) was enacted

which came into operation w.e.f. 07.12.1985 (hereinafter referred to as

the Act). The Act provided for establishment of an authority namely

National Airport Authority (“NAA” for short) for the management of

Aerodromes  and  Civil  Enclaves  whereat  domestic  Air  Transport

Services are operated or intended to be operated and for management

of all communication stations and matters connected therewith. Section

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13(3) of the Act which is relevant for our purposes is quoted hereunder

:- “13.  Transfer  of  assets  and  liabilities  of  the  Central Government to the Authority—

…………………………………… ………………………………….. (3) Every employee holding any office under the

Director-General  of  Civil  Aviation  immediately  before the commencement of this Act solely or mainly for or in connection with such affairs of the Directorate-General of Civil Aviation as are relevant to the functions of the Authority under this  Act as  may be determined by the Central  Government  shall  be  treated  as  on  deputation with  the  Authority  but  shall  hold  his  office  in  the Authority by the same tenure and upon the same terms and conditions of service as respects remuneration, leave, provident fund, retirement or other terminal benefits as he would have held such office if the Authority had not been  constituted  and  shall  continue  to  do  so  until  the Authority  duly  absorbs  such  employee  in  its  regular service.

Provided that during the period of deputation of any such employee with the Authority, the Authority shall pay the Central Government in respect of every such employee, such contribution towards his leave, salary, pension and gratuity  as  the  Central  Government  may,  by  order, determine:

Provided further that any such employee,  who has,  in respect of the proposal of the Authority to absorb him 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.”

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3. The record indicates that NAA was established w.e.f. 01.06.1986 and

the employees holding office under the DGCA as described in Section

13(3)  of  the  Act  were  en  masse sent  on  deputation  to  NAA.   On

31.03.1986  the  appellant  had  written  to  the  DGCA stating  that  he

would  like  to  continue  his  services  in  the  office  of  the  DGCA.

Immediately upon establishment of NAA, the appellant again wrote to

the DGCA on 04.06.1986 stating that he did not wish to join NAA and

his services be retained with the DGCA.

4. By  order  dated  11.07.1986  the  appellant  was  transferred  to  Civil

Aerodrome, Varanasi and it was directed that he be relieved from his

posting at Delhi and he must join the post at Varanasi w.e.f. 15.7.1986.

The appellant immediately wrote on 12.07.1986 to the Chairman, NAA

and stated :-

“…… Moreover, I beg to draw your kind attention to my letter  dated  31st March  1986  addressed  to  DGCA  in which I had already requested him that I would like to continue my services in the DGCA so I would not join the NAA.

In  view  of  the  above  it  is  requested  that  my transfer order may please be deferred till the end of the next academic session (April 87) in the mean time I may be absorbed in the DGCA. The reply to my request as contained  in  the  above letter  and subsequent  reminder dated 4.6.86 (copy attached) is being awaited.”

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5. The  appellant  did  not  join  the  services  at  Varanasi  and  remained

absent.  By his representation dated 02.09.1986, he stated that he was

making  all  efforts  to  see  that  his  option  of  not  joining  NAA was

fulfilled.  He also stated:-

“……In any event I would like to request your good-self to  at  least  give me my posting at  Delhi  until  the next academic  session  whereafter  the  undersigned  may  be transferred to any station as per law.”

6. By internal communication dated 04.02.1987 the office of the DGCA

wrote to the Chairman of NAA requesting to relieve the appellant so

that he could be posted in the office of the DGCA treating the case to

be of reversion to his parent office. However, as a matter of fact the

appellant was not relieved and continued to remain on deputation with

NAA.  On 11.03.1987 NAA issued a  memorandum stating that  the

request of the appellant for being posted in the office of the DGCA

could not be acceded to and that the appellant was required to join his

post  at Varanasi immediately.  In spite of such clear intimation, the

appellant  did not  join his  post  at  Varanasi  and continued to remain

absent.   On 23.02.1988, i.e.  nearly after  a year, the appellant  again

wrote that the insistence of NAA that he should join at Varanasi was

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uncalled for as the DGCA had already asked NAA to relieve him so

that he could join the office of the DGCA.     

7. Sometime  in  October  1989,  option  as  contemplated  under  Second

Proviso to  Sub-section 3 of  Section 13 of  the Act  was extended to

many employees whose services stood deputed with NAA.  However,

such option was not extended to the appellant because of his continued

absence from duty.  

8. On 11.02.1991 a memorandum was issued to the appellant enclosing

statement of Articles of Charges framed against him for his continued

absence  from 15.07.1986.   The  substance  of  imputation  of  alleged

misconduct  along  with  list  of  documents  was  submitted  and

disciplinary proceedings were initiated against him.  In his reply, the

appellant submitted inter alia that he had applied for repatriation which

request  was accepted by the DGCA on 04.02.1987 and as such the

appellant  could  not  and  ought  not  to  be  proceeded  against.   The

Enquiry  Officer  by  his  report  dated  31.08.1992  concluded  that  the

appellant  was  transferred  to  Varanasi  w.e.f.  15.07.1986  and  was

relieved on 15.07.1986 for joining Civil Aerodrome, Varanasi, that the

appellant did not report at Varanasi upon his transfer, that there was no

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application on record to show that he had taken any kind of leave and

that he was absenting from duty since 15.07.1986.

9. On 10.10.1992 the appellant submitted his representation against the

enquiry report dated 31.08.1992.  Thereafter, the Chairman of NAA

being the competent  authority recommended major penalty and sent

the matter to the relevant Ministry.  While the matter was so pending,

the services of the appellant were placed at the disposal of the DGCA

by  relieving  him  vide  letter  dated  13.03.1995  addressed  by  the

Administrative Directorate.  

10.The appellant  thereafter  filed  Writ  Petition No.4402 of  1995 in the

High Court of Delhi submitting that since 04.02.1987 his services all

the while were with the DGCA, that the entire disciplinary proceedings

were without jurisdiction,  that  in any case on and with effect  from

13.03.1995 his services were placed at the disposal of the DGCA and

that despite such order he was not allowed to join his posting with the

DGCA.  The appellant therefore prayed that he be allowed to join his

duty, that  NAA be directed to  disburse his  full  pay and allowances

from July 1986 onwards and that the DGCA be directed to release his

pay and allowances for the period from 04.02.1987. While opposing

the petition, it was submitted that by virtue of the statutory scheme the

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appellant  stood deputed with NAA but  he  had continued to  remain

absent  with  a  view to  avoid  transfer  out  of  Delhi.   It  was  further

submitted that so long as he was not relieved by NAA, the appellant

continued to be in the service of NAA.

11.The writ petition was allowed by a Single Judge of the High Court vide

judgment and order dated 02.11.1998.  It was observed that Section

13(3) of the Act could not be read to deny the right of an employee

which  he  had on  account  of  his  service  conditions  with  his  parent

department under the Fundamental Rules and that it was his right to

ask for reversion from deputation to join the parent department. It was

further observed that non-repatriation of the appellant after 04.02.1987

was  illegal  and  uncalled  for  and  that  on  and  with  effect  from

04.02.1987 the appellant stood relieved from the services under NAA

and  consequently  the  entire  disciplinary  proceedings  were  without

jurisdiction. Allowing the writ petition, it was ruled that the appellant

was entitled to all consequential benefits and promotion in the office of

the DGCA.

12.   NAA and the DGCA being aggrieved, filed LPA Nos.21 and 314 of

2000 respectively before the Division Bench of the High Court which

were allowed vide judgment and order dated 07.02.2006.  It was held

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that by virtue of Section 13(3) of the Act the services of the appellant

were automatically placed on deputation with NAA and he could not

go  back  to  the  parent  department  unless  relieved  by  NAA.  It  was

further observed that unless and until relieved by a specific order, the

appellant continued to be in the services of NAA and he could not have

absented himself from his duties in NAA.  The Division Bench thus set

aside the judgment and order passed by the Single Judge and dismissed

the writ petition.

13.  The appellant filed Review Application No.161 of 2006 in so far as

the judgment and order of the Division Bench in LPA No.21 of 2006

was concerned.  Said review application was dismissed by the Division

Bench  vide  order  dated  05.05.2006.   The  appellant  had  also  filed

Review Application No.209 of 2006 against the judgment and order

dated 07.02.2006 in so far  as  LPA No.314 of  2006 was concerned.

Said review application was dismissed by the Division Bench vide its

order dated 02.06.2006.  The judgment and orders in LPA Nos.21 of

1999 and 314 of  2000 and aforesaid  review applications  are  under

challenge  in  these  civil  appeals.  It  may  be  mentioned  that  on

02.08.2006  the  Government  of  India,  Ministry  of  Civil  Aviation,

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passed an order imposing the penalty of “dismissal from service” on

the appellant.   

14.Appearing for the appellant, Mr. V. Shekhar, learned Senior Advocate

submitted that the learned Single Judge was right in his assessment

about the effect of deputation and the rights of the appellant and  that

the appellant stood repatriated to the DGCA w.e.f. 04.02.1987 and as

such  the  subsequent  proceedings  were  without  jurisdiction.  While

opposing these contentions, Ms. Vibha Dutt Makhija, learned Senior

Advocate relied upon Section 13(3) of the Act and submitted that the

services  of  the  appellant  stood  statutorily  deputed  with  NAA and

unless he was specifically relieved, he continued to be in the services

of NAA and was not justified in remaining absent unauthorisedly.     

15. The  effect  of  Section  13(3)  of  the  Act  is  clear  and  every

employee holding any office under the DGCA in connection with the

functions of the Authority under the Act stood statutorily deputed with

NAA and continued to be on deputation till duly absorbed in its regular

service  by  NAA.  The  expression  used  in  said  Section  is  “shall  be

treated on deputation” which unequivocally shows mandatory nature of

the statutory provision.   Neither the employee nor the DGCA could

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stop such statutory deputation or have any say in the matter.  Second

Proviso  to  Sub-section  3  of  Section  13  of  the  Act  contemplates

exercise of discretion, within such time as may be specified, by the

employee in respect of proposal of the Authority to absorb him.  The

discretion would therefore be available at a later point in time as and

when  the  proposal  for  absorption  is  taken  up  for  deliberation  or

consideration  and  not  at  the  first  stage  when  the  services  stood

statutorily deputed with NAA.

16. The  services  of  the  appellant  having  thus  been  deputed  with

NAA,   the appellant ought to have joined his post at Varanasi and was

not  justified  in  remaining  absent  unauthorisedly.  The  fact  that  the

appellant prayed for disbursement of pay and allowances from NAA

with effect from 15.07.1986 itself shows that he was conscious of the

jural relation and that with effect from 15.07.1986 his services were

with NAA.  The tenor of his letters dated 04.06.1986, 11.07.1986 and

02.09.1986  further  shows  that  he  was  well  aware  that  his  services

stood deputed with NAA.  In the circumstances and more particularly

after  11.03.1987  the  appellant  was  not  at  all  justified  in  remaining

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absent. His continued absence from 15.07.1986 disentitles him from

any relief.

17. The  reliance  on  internal  communication  dated  04.02.1987  is

completely  misplaced.    By  said  communication,  the  request  was

definitely made by the DGCA that the appellant be relieved to enable

him  to  be  repatriated  to  the  parent  department.     However,  such

request  was not  acceded to and it  was specifically  conveyed to the

appellant by communication dated 11.03.1987 that he should join his

duty at Varanasi.    In the face of such communication, the appellant

could not have absented himself and if he did so, he alone would be

responsible for the consequences.  

18. As the services of the appellant were deputed with NAA, it was

definitely  competent  to  initiate  the  disciplinary  proceedings  for  his

continued absence.   The order of dismissal passed on 02.08.2006 is

not under challenge in these appeals.   As regards the entitlement to

seek disbursement of pay and allowances from NAA, in our view, the

appellant is not entitled to any relief.  We do not find any error in the

assessment made by the High Court in the judgment and order under

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appeal.   We, therefore,  dismiss these appeals leaving it  open to the

appellant to raise any challenge as regards the order of dismissal, if so

advised.  However, there shall be no order as to costs.

………………………….J            (Dipak Misra)  

…..………………………J           (Uday Umesh Lalit)

New Delhi October 28, 2015.