Meeta Malik Vs Air India Ltd.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 WRIT PETITION NO.1670 OF 1998

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 Meeta Rahul Malik, of Mumbai ]
 Indian Inhabitant, residing ]
 at 13, Basera (AI), Bldg.No. ]
 47, Swami Samarth Nagar, ]
 Andheri (W), Mumbai-400053 ]..Petitioner

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Vs.

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 Air India Limited, a Government ]
 of India undertaking, having ]
 its office at Backbay Reclamation ]

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 Nariman Point, Mumbai-400021 ]..Respondent

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 Mr.Mohan Bir Singh with Ms.Pooja Jalan with
 Ms.Kunti Jhaveri with Jayesh Vyas i/b

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 M/s.Bilawala & Co. for Petitioner

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 Mr.Sandeep Dasgupta i/b M/s. Bhasin and Co.

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 for Respondent

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 CORAM : DR.S.RADHAKRISHNAN AND
 SMT.V.K.TAHILRAMANI,JJ.

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 DATE : NOVEMBER 24, 2006

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ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI,J.):

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 1. In this petition under Article 226 of the
 Constitution of India, the Petitioner has prayed for
 directions to the Respondent to restore to the
 Petitioner her seniority and the salary and the rates
 of flying allowances applicable to her.

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 2. The Petitioner joined Respondent-Air India on
 7.6.1982 and she was placed between C.Miranda (Nee
 Ms.C.T.Periera) and V.Bhuse in the seniority list of
 Air Hostesses. In May, 1988, the Petitioner met with
 an accident in the flight during the course of her
 flight duties. While she was in the aircraft during
 the course of her duties, she sustained a head
 injury. On account of the said head injury, the
 Petitioner had to undergo extensive medical treatment
 including psychiatric treatment. During this long
 period, the Petitioner was treated in the Air India
 hospital or in hospitals approved by Air India. In
 July/August, 1997, the Petitioner regained fitness

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 and re-offered her services to the Respondent as an

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 Air Hostess. On 12.8.1997, the Petitioner was
 reinstated by the Respondent. However, the
 Petitioner was not paid the flying allowances as paid
 to C.Miranda and V.Bhuse. The Petitioner sent
 representation that she is entitled to the allowances
 as paid to C.Miranda and V.Bhuse, that is she is
 entitled to the allowances as applicable to Grade 25
 and not as applicable to Grade 16 in which she had
 been put. In October, 1997, the Petitioner’s
 allowances were revised to those applicable to Grade
 25. The Petitioner was also paid arrears of
 difference in allowances in August and September,
 1997. The Petitioner continued to be paid allowances
 as applicable to Grade 25 upto July, 1998.

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 3. However, on 24.7.1998, the Petitioner received a
 D/R message indicating that she is in Grade 18 and
 that the rate of allowances applicable to her, are
 reduced to those applicable to Grade 18. By letter
 dated 5.8.1998, the Petitioner objected to the said
 change without any notice or hearing. Being
 aggrieved by the action of the Respondent, the
 Petitioner filed this petition.

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 4. It is the case of the Petitioner that the
 Petitioner and the Respondent are covered by the
 Award (Known as Khosla Award) of N.I.T. presided
 over by Justice Khosla (Retired). The Award covers
 various items including payment of annuity to
 medically unfit cabin crew. The Award envisaged that
 cabin crew medically unfit to perform flying duties,
 may be provided ground jobs and upon such assignment,
 the crew shall have opportunities for advancement in
 their ground jobs equal to those of other employees.
 Alternatively, the medically unfit cabin crew may opt
 for annuity based on their last drawn basic pay
 subject to the conditions mentioned in the Award.
 The Award requires the cabin crew opting for either
 of two options to re-offer his/her services as cabin
 crew when he/she regains fitness. On the cabin crew
 opting to re-offer services, the Company is obliged
 to reinstate him/her in the grade and seniority held
 by him/her prior to the disablement. The terms of
 this benefit apply to pilots as well as cabin crew
 equally.

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 5. The Award is still valid and subsisting in
 respect of annuity. That the Khosla Award would
 apply to the case of the Petitioner is not denied by

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 the Respondent nor is it denied that the Petitioner
 sustained injury during the course of her duties in
 the aircraft.

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 6. Mr.Mohan Bir Singh, the learned counsel for the
 Petitioner submitted that the promotion contemplated
 by the policy of the Respondent was a time bound
 promotion and the Petitioner cannot be denied the
 promotion on completion of requisite service by her.
 Thus, he submitted that availing of leave on medical
 grounds, is not a valid reason for denying a time
 bound promotion. Shri.Singh also submitted that
 after the promotion, there was no change in the
 nature of duties carried out by the candidate and the
 entire purpose behind the promotion policy was to
 avoid stagnation.

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 7. It is not denied by Mr.Sandeep Dasgupta, the
 learned counsel for the Respondent that the promotion
 policy essentially contemplates a time bound
 promotion. The promotion policy itself also makes
 this amply clear. For a candidate to be denied a
 time bound promotion, the leave availed of, must be
 found to be objectionable, for instance being against
 the Rules, detrimental to the functioning of the

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 Respondent or indicative of her absence as lack of
 her commitment to the job. Moreover, such objection
 should at least, have been brought to the candidate’s
 notice. In the present case, the Petitioner has been
 reverted from Grade 25 to a lower Grade without
 hearing the Petitioner or asking the Petitioner to
 show cause which is against the principles of natural
 justice and opposed to good conscience.

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 8. The Respondent in their affidavit-in-reply has
 stated that at the time of the accident, the
 Petitioner was in Grade 15 so also at the time of
 opting for annuity, she was in Grade 15 and hence,
 after she became medically fit to rejoin the
 Respondent, she was placed in Grade 15. It is the
 case of the Respondent that they inadvertently paid
 the Petitioner allowances on the basis of total
 number of years of service from the date of her
 appointment i.e. in 1982 without deducting the
 period of four years from 7.7.1993 to 11.8.1997
 during which period, the petitioner had proceeded on
 annuity and had not rendered actual effective and
 active service to the Respondent. When the
 Respondent realised their mistake in July, 1998, the
 said mistake was rectified. Mr.Dasgupta further

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 submitted that as per the Khosla Award in case of
 medically unfit crew members, the crew members grade
 and seniority is to be protected and as the
 Petitioner at the time of accident and annuity was in
 grade 15, she was given the same grade on rejoining
 duties. However, we find that even if we accept the
 contention of Mr.Dasgupta that the Petitioner’s grade
 has been protected, we find that the Petitioner’s
 seniority has not been protected.

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 9. The Petitioner admittedly falls in the category
 of existing cabin crew. When the Petitioner joined
 duties she was placed in the seniority list between
 C.Miranda (Nee Ms.C.T.Periera) and V.Bhuse.
 Thereafter, the Petitioner and C.Miranda and V.Bhuse
 came to be promoted from time to time. However,
 thereafter, C.Miranda and V.Bhuse came to be promoted
 to Grade 25 whereas the Petitioner was reverted from
 Grade 25 to a lower Grade. The Khosla Award provides
 that the crew members seniority should be protected.
 However, by putting the Petitioner in grade 15, her
 seniority is not protected and in fact, C.Miranda and
 V. Bhuse and several others air hostesses who were
 in the same batch or junior to the Petitioner became
 senior to her on account of the Petitioner being

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 placed in a grade lower than 25. It is not disputed
 by the Respondent that the Petitioner’s personal file
 records are good and there is nothing against the
 Petitioner. It is also admitted that the Petitioner
 had sustained injuries in the aircraft itself while
 she was on duty. However, according to the
 Respondent, the Petitioner was not promoted to Grade
 25 as she was on long medical leave for about four
 years.

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 10. Mr.Singh, further submitted that in the case of
 another Air Hostess who was on long leave of 162 days
 due to medical reasons, this Court held that if the
 Petitioner therein availed of leave properly and for
 justified reasons on genuine medical ground, her
 promotion could not be withheld. The said decision
 was delivered in Writ Petition No.499 of 2000 dated
11th April, 2001 in Komila Bains Vs. Air India
Limited. The facts in the present case and the facts
 in the aforesaid case are similar and hence, the
 ratio of the aforesaid decision would apply to the
 facts of the present case.

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 11. In the present case, the medical leave availed
 of by the Petitioner was sanctioned by the

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 Respondent. The Respondent has not alleged that the
 Petitioner availed of leave improperly, unwarrantedly
 and dishonestly. The Respondent has not even
 remotely alleged that the leave of the Petitioner on
 medical ground was not justified. In fact, the
 reason for the Petitioner availing of medical leave
 was on account of injuries and complications
 therefrom arising out of an accident sustained by the
 Petitioner while on duty. Thus, we find that there
 is nothing on record to show that the leave availed
 of by the Petitioner was against the rules or
 dishonest or unjustified.

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 12. We have also noticed that the promotion policy
 itself did not disentitle the candidate from being
 entitled to promotion merely on the ground of leave
 having been availed of by the candidate. Mere
 availing of leave if authorised, proper and not
 indicative of the candidate’s lack of commitment to
 duty, cannot, in our view, disqualify the candidate
 from being promoted under the promotion policy. In
 the circumstances of the present case, it cannot be
 said that the Petitioner availed of leave on
 frivolous or unwarranted reasons. In the facts and
 circumstances of this case, we hold that the

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 Petitioner was wrongly denied promotion.

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 13. In the circumstances, we hold that the
 Respondent’s refusal to grant promotion to the
 Petitioner, is contrary to law and the promotion
 policy, it is arbitrary and unreasonable and the
 Petitioner deserves to be promoted and she deserves
 to be placed in the list of seniority between

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 C.Miranda (Nee Ms.C.T.Periera) and V.Bhuse.

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 14. Accordingly, Rule made absolute in terms of
 prayer clause (d) of the petition. No order as to

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 costs.

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 [ DR.S.RADHAKRISHNAN,J.]

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 [SMT.V.K.TAHILRAMANI,J.]

Meeta Malik v. Air India Ltd.

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Meeta Malik v. Air India Ltd.

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