Dismissed

Pragyesh Mishra v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Aviation, Lko. and Another

Allahabad HC3 Jul 2024WRIA/3685/2024

Case brief

AI extract

What is this about?

The petitioner, a government pilot, sought a writ of mandamus directing authorities to allow him to perform flying assignments and complete mandatory training to maintain his license currency, claiming financial loss and license expiry. The court noted a pending de novo disciplinary enquiry against the petitioner involving serious charges. It held that the employer is not bound to assign specific

What did the court decide?

Dismissal of the writ petition with no order as to costs.

Pragyesh Mishra vs State of U.P. Thru. Addl. Chief… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:57129 Reserved on 09.07.2024 Delivered on 21.08.2024

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Case :- WRIT - A No. - 3685 of 2024 Petitioner :- Pragyesh Mishra Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Aviation, Lko. And Another Counsel for Petitioner :- Shireesh Kumar,Utkarsh Kumar Counsel for Respondent :- C.S.C.

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Hon'ble Rajesh Singh Chauhan,J.

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1. Heard Sri Shireesh Kumar, learned counsel for the petitioner and Shailendra Kumar Singh, learned Chief Standing Counsel assisted by Sri Sandeep Sharma, learned Standing Counsel and Sri Tushar Verma, learned Additional Chief Standing Counsel for the State-respondents.

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2. By means of this writ petition, the petitioner has prayed for the following reliefs:-

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“(i) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to allow the petitioner to attend his office and also allot him to perform flying assignments as per his job profile, CARs, and terms of Licences.

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(ii) to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to permit the petitioner to attend and complete mandatory training programmes as per the CARs issued by the Director General, Civil Aviation time to time to maintain his recency/ continuity/ renewal of rating and licence as per the existing rules and provisions.”

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3. The brief facts of the case are that the petitioner was initially appointed on the post of Junior Pilot and he joined the service on 28.10.1988. Thereafter, he promoted to the post of Government Pilot.

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4. Learned counsel for the petitioner has submitted that the petitioner was allowed to perform his regular flights till 17.06.2023, but on

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17.06.2023, when the petitioner reached his office he was verbally restrained from entering into the office. Thereafter, he continuously went to his office at Lucknow Airport but he was not allowed to enter into the office and to perform the flight duties. On 22.06.2023, he submitted an application before the Competent Authority making request that like other pilots in the department he should be allowed regular flying operations. He preferred some more applications, but to no avail and he was not allowed to perform flying assignments till 07.05.2024 as he filed the instant writ petition before this Court on 07.05.2024.

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5. Sri Shreesh Kumar, learned counsel for the petitioner has submitted that the Union of India notified an Act in the name of Aircraft Act, 1934 (Central Act No.22 of 1934) (here-in-after referred to as the “Act, 1934”) with an object to make better provision for control of manufacture, possess, use, operation, sale, import and export of Aircrafts. Further, exercising the powers conferred under Sections 5, 7 and 8 (2) of the Act, 1934, the Central Government notified the rules in the name of Aircraft Rules, 1937 (here-in-after referred to as the “Rules, 1937”). The Director General of Civil Aviation confer with the powers under Rule 133-A of the Rules, 1937 to issue Civil Aviation Requirements (here-in-after referred to as the “CAR”) and compliance with CAR is mandatory. On 02.06.2010, the CAR was issued providing for minimum requirements for undertaking aircraft operations with aircraft owned by the State Governments/ Public Sector Undertakings of Central/ State Governments. The CAR dated 02.06.2010 provides the eligibility requirements, operational requirements etc. and as per para-2 of the CAR dated 02.06.2010, permission for undertaking aircraft operations under this CAR can be granted only to (a) A State Governments or (b) A body corporate owned or controlled by the Cental or a State Government.

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6. Learned counsel for the petitioner has submitted that para-6.16 of the CAR dated 02.06.2010 provides that when operating VIP flights

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with Helicopters and Pilot in command shall possess a CPL (H) Or ATPL (H) with at least 2000 hrs. including 500 hours of PIC experience, 75 hours as PIC on type of Aircraft and at least 10 hours of night flying experience. In addition, the Pilot should have a minimum of 30 hours as PIC experience in the last 6 months including five hours on type in the last thirty days of the intended flight. In case 30 hrs. recency during the last 6 months is not met with, then in last 30 days a satisfactory skill test (as required for licence renewal) shall be carried out followed by 5 hours of PIC experience. The training and checks related requirements for Pilots flying for State Government/ PSUs shall be complied as stipulated in CAR Section 8, Series-H, Part-II. On 23.02.2024, the Director General of Civil Aviation issued another CAR providing for flight crew training and qualification reqirements for commercial Helicopter operations. Para-9 of CAR dated 23.02.2024 provided for recurrent checks and training and this provision makes it mandatory for an operator to ensure that:-

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9.1.1. Each flight crew member undergoes recurrent training and checks and that all such training and checks are relevant to the type or variant of Helicopter on which the flight crew member operates.

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9.1.2. Recurrent training is conducted by the following personnel:

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9.1.2.1. Operator’s Ground Refresher Training- by suitably type qualified TRE/TRI/ Check Pilot.

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9.1.2.2. Flight Simulation Training Device (FSTD)/ Helicopter Training- by a SFI for FSTD, check Pilot/ TRI/ Tre for Helicopter, as applicable.

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9.1.2.3. All flying training / checks will be carried out by DGCA approved TRI/ TRE only. Line checks and ‘Under Supervision’ flying may be carried out by a Check Pilot.

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9.1.2.3. All operators must ensure that their DGCA approved Check Pilot, TRIs and TREs are made available for Training/ Checking / Testing of Pilots on priority, when required.

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7. Learned counsel for the petitioner has stated that the action of the opposite parties in the matter of not assigning regular flight duties to the petitioner as per his job requirements is in violation of the CARS issued from time to time by the Director General of Civil Aviation despite the fact that compliance of the CARs are compulsory as per Rule 133-A of the Rules.

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8. Learned counsel for the petitioner has further submitted that by keeping the petitioner away from flying duties and not allowing him to carry out flying operations results into disqualification for the petitioner from flying as the petitioner is required to undergo training to resume the flying operations and depriving the petitioner of his regular flight operations is resulting into expiry of the licenses issued to the petitioner from time to time by the Competent Authorities.

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9. Learned counsel for the petitioner has also submitted that the petitioner in the capacity of a commercial Pilot possesses different certificates and qualifications enabling him to fly different Helicopters and planes and due to non-assignment of flight duties to him by the opposite parties, the licences granted to him are expiring on expiry of the period of grant of licence.

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10. Sri Shreesh Kumar, learned counsel for the petitioner has lastly submitted that the petitioner is suffering recurring financial loss also as allowances are admissible to a Pilot on flight operations and noallocation of flight duties to the petitioner is causing recurring financial loss to him. The petitioner is shortly due for retirement from service and if the opposite parties are not directed to allow the petitioner to perform regular flight duties and training programmes to maintain the currency of licences as per the CARs issued by the DGCA then the petitioner shall suffer an irreparable loss. The entire action of the opposite parties in the matter of not permitting the petitioner to enter into his office and not allotting any flying assignment without any order by the Competent

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Authority or reason shows that they are acting in colourable exercise of their powers.

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11. Per contra, the learned Chief Standing Counsel has stated that he has received complete instructions in the matter and this matter may be disposed of finally in the light of the aforesaid written instructions. Advance copy of the aforesaid written instructions has been provided to the learned counsel for the petitioner.

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12. Sri Shailendra Kumar Singh, learned Chief Standing Counsel has stated that there are 03 Aircrafts and 03 Helicopters in the Aviation Directorate and the strength of Pilot (Fixed Unit) to run the Aircraft is 09 and to run the Helicopter is also 09 (Rotter Unit). To run the Aircraft in the Fixed Unit against 09 sanctioned post, only one regular Pilot and 07 Pilots on contract basis are working. Likewise to run the Helicopter against 09 Pilots (Rotter Unit), only one Pilot on regular basis and 07 Pilots are on contractual basis are working. He has further submitted that all the Pilots are allowed for flying in terms of rules and regulations applicable in the present case so that all could complete their flying hours.

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13. Sri Singh has submitted that the salary and other service benefits of the petitioner have not been stopped, however, he was lastly allowed for flying on 15.06.2023. He has further submitted that the petitioner is having licence of flying of the Helicopter which is valid upto 09.11.2025.

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14. Sri Singh has further submitted that even the Directorate is not taking any coercive steps against the petitioner in any manner whatsoever and he has been permitted to undergo training from the critical emergency training and instrument flying training, Bangalore on 27 & 28.04.2024, as an order to this effect has been issued on 06.05.2024. The petitioner has himself preferred a letter dated 13.06.2024 to the Director of Civil Aviation Directorate, Lucknow

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indicating therein that he has successfully attended another online SGT session scheduled from 13.06.2024 through the DGCA approved training organization and that training was communicated to him by the Additional Director (Technical) via E-mail.

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15. The petitioner was departmentally punished vide order dated 07.02.2024 for the serious charge whereby the penalty of reduction by three stages in time scale of pay upto lower stage and recovery of government exchequer for the misconduct committed by him on 15.10.2019 has been ordered by the Appointing Authority. Though this Court, vide judgment and order dated 02.04.2024 passed in Writ-A No.1692 of 2024; Pragyesh Mishra vs. State of U.P., quashed the impugned punishment order on the ground that the charge-sheet was served upon the petitioner without seeking prior approval from the Competent Authority and once the charge-sheet itself is unapproved, consequently, any punishment order passed on the basis of the said charge-sheet would be void ab initio. However, liberty was given to the authorities to proceed against the petitioner in accordance with law.

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16. Pursuant to the aforesaid order, the office memo dated 10.05.2024 has been issued by the Additional Chief Secretary, Department of Civil Aviation, Government of U.P., Lucknow reviving the disciplinary proceedings against the petitioner appointing Sri M. Devraj, Principal Secretary, Technical and Vocational Education, U.P., Lucknow as Enquiry Officer asking him to serve the charge-sheet upon the petitioner strictly in accordance with law to conduct and conclude the departmental enquiry against the petitioner following the due procedure of law.

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17. Learned Chief Standing Counsel has stated, on the basis of instructions, that after conclusion of the departmental enquiry, the decision may be taken to allow the petitioner for further flying subject to final outcome of the aforesaid de-novo disciplinary proceedings.

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18. Sri Shailendra Kumar Singh, learned Chief Standing Counsel has stated with vehemence that serious allegations have been levelled against the petitioner, for that, thorough departmental enquiry is needed which is still pending consideration, therefore, till the pendency of that enquiry the petitioner may not be assigned any serious responsibility inasmuch as being a Senior Government Pilot the petitioner carries VIP dignitaries, such as, Prime Minister, Central Cabinet Ministers, Governor, Chief Minister, Cabinet Ministers of the State etc. However, during pendency of such departmental enquiry the petitioner is being paid his regular salary and other consequential service benefits as and when the same falls due

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19. Sri Singh has further submitted that this has been a consistent view of the Constitutional Courts to the effect that an employee has no right to seek a particular and specific work but has only right to do the assigned works and to get salary as it is always open to the Employer to take work from an employee or not, if there is some cogent reasons, but he will have to be paid salary so long as he/ she is not suspended or the employment is not terminated.

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20. Sri Singh has drawn attention of this Court towards the judgment of the Division Bench of this Court rendered in the case in re: Rajendra Prasad Chaturvedi vs. Commissioner, Kanpur Region, Kanpur and others reported in 2002 (20) LCD 1129 where in a similar facts and circumstances the Division Bench has held in paras-4, 5 & 6 as under:-

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“4. It is well-settled that to obtain a writ, the petitioner has not only to show violation of law but also some prejudice, because writ Jurisdiction is equity Jurisdiction. In the present case, even assuming that there is some violation of law, no prejudice is caused to the petitioner, because his burden of work has been reduced. It is only an employee, who wants to earn money dishonestly, apart from his salary, who may have a grievance, against an order reducing his burden of work.

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5. Learned counsel for the petitioner has relied upon a Supreme Court decision in P. K. Chinnasamy v. Government of Tamil Nadu and others, AIR 1988 SC 78. We have carefully perused the said decision and are of the opinion that it is confined to the facts of that particular case, and it does not lay down any principle of law that an employer is bound to give work to an employee even if it pays full salary and allowances.

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6. In our opinion, it is open to the employer not to take work or to take lesser work from employee, provided the employer is willing to pay the full salary, allowance and perks. No honest employee can insist that he be given work apart from salary and allowances.”

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21. Heard learned counsel for the parties and perused the material available on record.

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22. At the very outset, I am also of the considered opinion that it is always open for the Employer to take particular work as per the administrative exigency or not to take work or to take lesser work from the employee provided the Employer is willing to pay full salary, allowance and perks which is admissible to the employee as per the law.

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23. In view of the facts and circumstances of the present case, since one de novo departmental enquiry is pending consideration against the petitioner where he had earlier been awarded major punishment, therefore having expectation that such departmental enquiry/ proceedings be concluded with expedition, strictly in accordance with law, by affording an opportunity of hearing to the petitioner, I do not wish to issue a writ of mandamus, at this stage, as prayed in the writ petition. I have also noted that even after 15.06.2023 till 13.06.2024 the petitioner has been permitted to undergo some technical flying trainings twice, therefore, it may not be thought that the opposite parties are causing any prejudice to the petitioner. During course of arguments, learned Chief Standing Counsel has informed on the basis of instructions that the authorities are conscious that as and when the

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advance flying training would be required for the petitioner that aspect would be taken into consideration strictly as per the rules but subject to final outcome of the pending departmental enquiry, therefore, I find that the prayers, so prayed in the writ petition, are misconceived.

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24. Accordingly, the writ petition is dismissed.

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25. No order as to the costs.

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[Rajesh Singh Chauhan,J.]

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Order Date :- 21^st August, 2024. Suresh/

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Digitally signed by :- SURESH CHANDRA High Court of Judicature at Allahabad, Lucknow Bench

Pragyesh Mishra v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Aviation, Lko. and Another

Case brief

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Pragyesh Mishra v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Aviation, Lko. and Another

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