Holding

The termination order is ex‑facie stigmatic and illegal; the appellant must be reinstated.

Summary

Dr. C.P.V. Vijayakumaran, an associate professor on probation at Central University of Kerala, faced multiple complaints of sexual harassment by female students. An Internal Complaints Committee, constituted under UGC Regulations, conducted a formal inquiry, found him guilty, and recommended disciplinary action. The Executive Council, relying on the ICC report and his academic performance, issued a termination order on 30 November 2017. The appellant challenged the order, arguing it was a simple termination without stigma, but the Supreme Court held the order to be ex‑facie stigmatic and punitive because it was based on a finding of guilt without a regular departmental inquiry as required by service rules. Consequently, the termination was declared illegal and the appellant was directed to be reinstated, with the question of back wages left to the university for further determination.

Issues considered

Whether the termination order dated 30.11.2017 is a simple termination (termination simplicitor) or an ex‑facie stigmatic order.
Whether termination of a probationer can be effected without a regular departmental inquiry as mandated by service rules.
Whether reference to the ICC report and Executive Council decision renders the termination order stigmatic.
Whether the appellant is entitled to reinstatement and back wages.

Legislation cited

Subjects

termination of serviceprobationsexual harassmentinternal complaints committeestigmatic orderservice rulesreinstatementuniversity

Judgment

374 [2020]REPORTS
SUPREME COURT 3 S.C.R. 374 [2020] 3 S.C.R.

A DR. VIJAYAKUMARAN C.P.V.
v.
CENTRAL UNIVERSITY OF KERALA & ORS.
(Civil Appeal No. 777 of 2020)
B JANUARY 28, 2020
[A. M. KHANWILKAR, HEMANT GUPTA AND
DINESH MAHESHWARI, JJ.]
Service Law:
C Termination of service – Of University Associate Professor
on probation – Pursuant to report of Internal Complaints Committee
which was constituted on complaints regarding sexual harassment
of female students – Appellant assailed the termination order on
the ground that it was stigmatic – Single Judge as well as Division
Bench of High Court construed the termination order as termination
D
simplcitor – Appeal to Supreme Court: Held: From the tenor of the
termination order it is evident that it is ex- facie stigmatic and punitive
– Such an order could be issued only after subjecting the incumbent
to a regular inquiry as per service Rules – Therefore, the termination
order is illegal – Incumbent is directed to be reinstated – University
E Grants Commission (Prevention, Prohibition and Redressal of Sexual
Harassment of Women Employees and Students in Higher
Educational Institutions) Regulations, 2005 – Regulations 5 and 8.
Disposing of the appeal, the Court
HELD: 1. Going by the tenor of the order of termination, it
F is incomprehensible as to how the same can be construed as
termination simplictor, when it has made the report of the inquiry
conducted by the Internal Complaints Committee and the decision
of the Executive Council dated 30.11.2017 as the foundation, in
addition to the ground of academic performance. Had it been a
G case of mere unsatisfactory academic performance, the situation
would have been entirely different. The appellant has been
subjected to a formal inquiry before the Committee constituted
under statutory regulations to inquire into the allegations
bordering on moral turpitude or misconduct committed by the
appellant and that inquiry culminated in a finding of guilt against
H
374
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF 375
KERALA & ORS.

the appellant with recommendation of the Executive Council to A
proceed against the appellant as per the service rules. In such a
situation, it is unfathomable to construe the order as order of
termination simplicitor. [Para 7][382-F-H; 383-A-B]
2. The material which amounts to stigma need not be
contained in the order of termination of the probationer, but might B
be contained in “any document referred to in the termination
order”. Such reference may inevitably affect the future prospects
of the incumbent and if so, the order must be construed as ex-
facie stigmatic order of termination. [Para 8][383-C-D]
3.1 One of the judicially evolved tests to determine whether C
in substance an order of termination is punitive is to see whether
prior to the termination there was (a) a full-scale formal enquiry
(b) into allegations involving moral turpitude or misconduct which
(c) culminated in a finding of guilt. In the present case, all the
three elements are attracted, as a result of which it must follow
that the stated order is ex-facie stigmatic and punitive. Such an D
order could be issued only after subjecting the incumbent to a
regular inquiry as per the service rules. [Para 9][385-G-H;
386-A-B]
4. Upon receipt of complaints from aggrieved women (girl
students of the University) about the sexual harassment at E
workplace (in this case, University campus), it was obligatory on
the Administration to refer such complaints to the Internal
Committee or the Local Committee, within the stipulated time
period as predicated in Section 9 of the Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) F
Act, 2013. Upon receipt of such complaint, an inquiry is required
to be undertaken by the Internal Committee or the Local
Committee in conformity with the stipulations in Section 11 of
the 2013 Act. The procedure for conducting such inquiry has also
been amplified in the University Grants Commission (Prevention,
Prohibition and Rederessal of Sexual Harassment of Women G
Employees and Students in Higher Educational Institutions)
Regulations 2015. Thus understood, it necessarily follows that
the inquiry is a formal inquiry required to be undertaken in terms
of the 2015 Regulations. The allegations to be inquired into by
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376 SUPREME COURT REPORTS [2020] 3 S.C.R.

A such Committee being of “sexual harassment” defined in Section
2(n) read with Section 3 of the 2013 Act and being a serious matter
bordering on criminality, it would certainly not be advisable to
confer the benefit on such employee by merely passing a simple
order of termination. Such complaints ought to be taken to its
logical end by not only initiating departmental or regular inquiry
B
as per the service rules, but also followed by other actions as per
law. In such cases, a regular inquiry or departmental action as
per service rules is also indispensable so as to enable the
employee concerned to vindicate his position and establish his
innocence. [Para 10][386-E-H; 387-A]
C 5. The impugned termination order dated 30.11.2017 is
illegal being ex-facie stigmatic as it has been issued without
subjecting the appellant to a regular inquiry as per the service
rules. On this conclusion, the appellant would stand reinstated,
but whether he should be granted backwages and other benefits
D including placing him under suspension and proceeding against
him by way of departmental or regular inquiry as per the service
rules, is, a matter to be taken forward by the authority concerned
in accordance with law. [Para 11][387-B-C]
6. Even though the impugned order of termination dated
E 30.11.2017 is set aside in terms of this judgment, as a result of
which the appellant would stand reinstated, but at the same time,
due to flawed approach of the respondent No. 1 – University, the
entitlement to grant backwages is a matter which will be subject
to the outcome of further action to be taken by the University as
per the service rules and in accordance with law. [Para 11]
F [388-B-C]
7. The impugned judgments and orders dated 30.1.2018
and 20.2.2018 passed by the High Court including the order of
termination dated 30.11.2017 issued under the signatures of the
Vice-Chancellor of the respondent No. 1 – University are set
G aside instead reinstatement of the appellant is directed and the
question regarding backwages, placing him under suspension and
initiating departmental or regular inquiry as per the service rules,
to be taken forward by the authority concerned in accordance
with law is left. [Para 12][388-D-E]
H
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF 377
KERALA & ORS.

Indra Pal Gupta v. Managing Committee, Model Inter A
College, Thora (1984) 3 SCC 384 : [1984] 3 SCR 752;
Dipti Prakash Banerjee v. Satyendra Nath Bose
National Centre for Basic Sciences, Calcutta & Ors.
(1999) 3 SCC 60 : [1999] 1 SCR 532; Pavanendra
Narayan Verma v. Sanjay Gandhi PGI of Medical
B
Sciences & Anr. (2002) 1 SCC 520 : [2001] 5 Suppl.
SCR 41; Managing Director, ECIL, Hyderabad & Ors.
v. R. Karunakar & Ors. (1993) 4 SCC 727 : [1993] 2
Suppl. SCR 576 – relied on.
Case Law Reference
C
[1984] 3 SCR 752 relied on. Para 8
[1999] 1 SCR 532 relied on. Para 8
[2001] 5 Suppl. SCR 41 relied on. Para 9
[1993] 2 Suppl. SCR 576 relied on. Para 11 D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 777 of
2020.
From the Judgment and Order dated 20.02.2018 of the High Court
of Kerala at Ernakulam in WA. No. 444 of 2018 in WPC No. 39013 of
2017. E
R. Basant, Sr. Adv., Ms. Resmitha R. Chandran, Subhas Chandran,
Biju Joseph, Pramod P., Advs. for the Appellant.
Vinary Navare, Sr. Adv., Nachiketa Joshi, Sajith Vishvanathan,
Ms. Sucheta Joshi, Ms. Himadri Haksar, Vipul Tiwari, Advs. for the
Respondents. F

The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
G
2. The moot question involved in this appeal is: whether the order
issued under the signatures of Vice-Chancellor of the Central University
of Kerala (respondent No. 1), dated 30.11.2017 is simplicitor termination
or ex-facie stigmatic? The said order reads thus: -

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378 SUPREME COURT REPORTS [2020] 3 S.C.R.

A “Order
On scrutiny of report by the Internal Complaints Committee, other
documents and academic performance, the Executive Council held
on 30/11/2017 felt that the performance of Dr. C.P.V.
Vijayakumaran on probation is not suitable for continuation and
B confirmation in this University and had resolved to terminate the
services forthwith. It is ordered accordingly.”
3. Shorn of unnecessary details, on 5.6.2017, the respondent No.
1 – University sent an offer letter to the appellant for being appointed to
the post of Associate Professor in the Department of Hindi. This letter
C stated that he would be on probation for a period of twelve months from
the date of joining and governed by the rules and regulations of the
Central University of Kerala for teachers and other academic staff,
orders issued by the University/University Grants Commission (UGC)/
Government of India from time to time and the code of conduct applicable
to all the employees of the respondent No. 1 – University etc. A formal
D written contract was entered into between the appellant and the
respondent No. 1 – University on 12.6.2017, restating the terms and
conditions referred to in the offer letter. The relevant clauses of the
contract read thus: -
“2. (a) The teacher shall be on probation for a period of 12 months
E which may be extended by a further period of 12 months. The
total period of probation shall in no case exceed twenty four
months.
(b) The case of each teacher shall be placed before the Executive
Council for confirmation soon after the expiry of the period of
F probation prescribed that is within 6-8 weeks. The decision of the
Executive Council with regard to his/her confirmation or extension
of his/her probation period, should be communicated to the teacher
immediately.
(c) If the University is satisfied with the suitability of the teacher
G for confirmation he/she shall be confirmed on the post to which
he/she was appointed at the end of the period of his/her probation.
(d) Where a teacher appointed on probation is found, during the
period of probation, not suitable for holding that post or has not
completed the period of probation whether extended or not,
H satisfactorily, the Executive Council may (i) if the appointment is
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF 379
KERALA & ORS. [A. M. KHANWILKAR, J.]

by direct recruitment, terminate the teacher’s Service from the A
University without the notice (ii) if the appointment is by promotion,
revert the incumbent to previous post held by him.
(e) That the said Teacher shall be a whole-time teacher of the
University and unless the contract-is-terminated by the Executive
Council or by the teacher as hereinafter provided shall continue in B
the service of the University until he/she complete the age of 65
years.”
xxx xxx xxx
7. It is further agreed that this engagement shall not be liable to be
terminated by the University except on the grounds specified and C
in accordance with the procedure laid down in clauses (i) to (vi).
Reproduced below:
(i) Where there is an allegation of misconduct against a
teacher or a member of the academic staff the Vice-
Chancellor may if he thinks fit by order in writing, place D
the teacher under suspension and shall forthwith report
to the Executive Council the circumstances in which the
order was made:
(ii) Provided that the Executive Council may if it is of
the opinion that the circumstances of the case do not E
warrant the suspension of the teacher or the member of
the academic staff revoke that order.
(iii) Notwithstanding anything contained in the terms of
her contract of service or of her appointment, the
executive council shall be entitled to remove a teacher F
or a member of the academic staff on the ground of
misconduct.
(iv) Save as aforesaid, the Executive Council shall not be
entitled to remove a teacher or a member of the academic
staff except for good cause and after giving three months notice G
in writing or on payment of three months salary in of notice.
(v) No teacher or a member of the academic staff shall
be removed under clause (ii) or under clause (iii) until
she has been given a reasonable opportunity of showing
cause against the addition proposed to be taken against H
her.
380 SUPREME COURT REPORTS [2020] 3 S.C.R.

A (vi) The removal of a teacher or a member of the
academic staff shall require a two-thirds majority of the
numbers of the executive council present and voting.
(vii) The removal of a teacher or a member of the
academic staff shall take effect from the date on which
B the order of the removal is made.
Provided that where a teacher or a member of the academic
staff is under suspension at the time of removal, the removal
shall take effect from the date on which she was placed
under suspension.
C 8. Any dispute arising, out of this contract shall be settled in
accordance with the provisions of the Central University of
Kerala.”
(emphasis supplied)

D 4. After being appointed as Associate Professor in the Department
of Hindi with effect from 12.6.2017, the appellant assumed office. But
soon thereafter, a complaint was filed against him by a third-semester
student on 13.7.2017 followed by two other complaints dated 14.7.2017
filed by 16 students and 29.8.2017 filed by 23 students. It is not necessary
for us to highlight the grievance(s) set out in the said complaints. As a
E consequence of the stated complaints, the respondent No. 1 – University
had no option but to constitute an Internal Complaints Committee in
terms of the statutory regulations being University Grants Commission
(Prevention, Prohibition and Redressal of Sexual Harassment of Women
Employees and Students in Higher Educational Institutions) Regulations,
F 2015 (for short, ‘the 2015 Regulations’). Regulation 5 thereof sets out
responsibilities of the Internal Complaints Committee and the process of
conducting inquiry by the Committee is predicated in Regulation 8, which
includes submission of inquiry report with its findings and
recommendations to the Executive Authority of the respondent No. 1 –
University. The stated Committee accordingly submitted its inquiry report
G with findings and recommendations. The operative part of that report
reads thus:-
“…………….
In view of all the facts above, it appears to the Committee that
the complaint is genuine and consistent and it is improbable that
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all eighteen students of a batch (complainants) could be influenced A
to fabricate an allegation against the accused by the University
authorities. The possibility of any such interventions was
categorically denied by the complainants. The evidences against
the accused, both verbal as well as written statements are strong
and authentic, and the accused failed to establish his innocence
B
during the investigation process. The Committee unanimously feels
that the accused had committed sexual offences against girl
students spoiling the entire academic atmosphere in the department
and as well in the campus as a whole We feel that this can affect
the reputation of the University.
The committee further would like to emphasis on ensuring fearless C
learning environment for the woman students. Irrespective of
possible positive decision if any in favour of the accused, the
committee recommends that the accused should not be allowed
to engage the classes and evaluation duties of the current Sem 1
and Sem 3 batches of the Hindi department. D
All the evidences and conclusion are hereby submitted by the
Committee before the Hon, VC for further actions. (The minutes
of the committee meetings and the voice records of the statements
are already submitted with the interim report and hence not added
this time.” E
This report was taken up for consideration by the Executive
Council of the respondent No. 1 – University on 30.11.2017. The relevant
portion of the decision taken by the Executive Council reads thus: -
“………….
F
The Hindi Department is only having these two batches of students.
The accused is presently aged 62. He had committed sexual
misconduct with the girl students of his daughter’s age and the
same has been convincingly established in the report of the Internal
Complaints Committee. Dr. C.P.V. Vijayakumaran, a probationer
committed serious misconduct and brought disrepute to the G
University apart from vitiating the academic atmosphere at the
University.
He has been drawing salary, without any academic work w.e.f.
19 September 2017 due to the complaints and indefinite boycott
of classes by the I Semester and III Semester students. The H
382 SUPREME COURT REPORTS [2020] 3 S.C.R.

A Executive Council has also examined the academic performance
of Dr. C.P.V. Vijya Kumaran from the date of appointment.
Decision: On scrutiny of report by the Internal Complaints
Committee, other documents and academic performance it is felt
that performance of Dr. C.P.V. Vijaya Kumaran on probation is
B not suitable for continuation and confirmation in this University
and therefore it is resolved to terminate the services forthwith.
The Vice-Chancellor is authorized to issue orders
accordingly…….”
5. From the perusal of the termination order dated 30.11.2017
C issued by the Vice-Chancellor, it is evident that the same was issued in
the backdrop of the Internal Complaints Committee report. The opening
part of the order itself mentions that on scrutiny of report by the Internal
Complaints Committee, other documents and academic performance,
the Executive Council in its meeting held on 30.11.2017, decided to take
the decision to terminate the services of the appellant forthwith.
D
6. The appellant had assailed the impugned termination order dated
30.11.2017 being ex-facie stigmatic. The learned single Judge of the
High Court of Kerala at Ernakulam (for short, ‘the High Court’) vide
judgment and order dated 30.1.2018 in Writ Petition (Civil) No. 39013/
2017, however, construed the same as one of termination simplicitor.
E The Division Bench of the High Court vide impugned judgment and
order dated 20.2.2018 in Writ Appeal No. 444/2018 has affirmed that
view taken by the learned single Judge and rejected the appeal preferred
by the appellant.
7. Accordingly, the moot question before us is: whether the order
F dated 30.11.2017 can be regarded as order of termination simplictor or
is ex-facie stigmatic? Going by the tenor of the stated order, it is
incomprehensible as to how the same can be construed as termination
simplictor when it has made the report of the inquiry conducted by the
Internal Complaints Committee and the decision of the Executive Council
G dated 30.11.2017 as the foundation, in addition to the ground of academic
performance. Had it been a case of mere unsatisfactory academic
performance, the situation would have been entirely different. The stated
order not only adverts to the report of the Internal Complaints Committee,
but also the decision taken by the Executive Council, which in turn
highlights the fact that the appellant had to face an inquiry before the
H
DR. VIJAYAKUMARAN C.P.V. v. CENTRAL UNIVERSITY OF 383
KERALA & ORS. [A. M. KHANWILKAR, J.]

Committee in reference to the allegations of serious misconduct A
committed by him. Notably, the appellant has been subjected to a formal
inquiry before the Committee constituted under statutory regulations to
inquire into the allegations bordering on moral turpitude or misconduct
committed by the appellant and that inquiry culminated in a finding of
guilt against the appellant with recommendation of the Executive Council
B
to proceed against the appellant as per the service rules. In such a situation,
it is unfathomable to construe the order as order of termination simplicitor.
8. It is well-established position that the material which amounts
to stigma need not be contained in the order of termination of the
probationer, but might be contained in “any document referred to in the
termination order”. Such reference may inevitably affect the future C
prospects of the incumbent and if so, the order must be construed as ex-
facie stigmatic order of termination. A three-Judge Bench of this Court
in Indra Pal Gupta vs. Managing Committee, Model Inter College,
Thora1 had occasion to deal with somewhat similar situation. In that
case, the order of termination referred to the decision of the Managing D
Committee and subsequent approval by the competent authority as the
basis for termination. The resolution of the Managing Committee in turn
referred to a report of the Manager which indicated serious issues and
that was made the basis for the decision by the Committee to terminate
probation of the employee concerned. Relying on the aforementioned
decision, the Court in Dipti Prakash Banerjee vs. Satyendra Nath E
Bose National Centre for Basic Sciences, Calcutta & Ors.2, observed
as follows: -
“32.The next question is whether the reference in the
impugned order to the three earlier letters amounts to a
stigma if those three letters contained anything in the nature F
of a stigma even though the order of termination itself did
not contain anything offensive.
33. Learned counsel for the appellant relies upon Indra Pal Gupta
v. Managing Committee, Model Inter College (1984) 3 SCC
384 decided by a three-Judge Bench of this Court. In that case, G
the order of termination of probation, which is extracted in the
judgment, reads as follows: (SCC p. 386, para 1)

1
(1984) 3 SCC 384
2
(1999) 3 SCC 60
H
384 SUPREME COURT REPORTS [2020] 3 S.C.R.

A “With reference to the above (viz. termination of service as
Principal), I have to mention that in view of Resolution No. 2
of the Managing Committee dated April 27, 1969 (copy
enclosed) and subsequent approval by the D.I.O.S.,
Bulandshahr, you are hereby informed that your service as
Principal of this Institution is terminated….”
B
Now the copy of the resolution of the Managing Committee
appended to the order of termination stated that the report of the
Manager was read at the meeting and that the facts contained in
the report of the Manager being serious and not in the interests of
the institution, that therefore the Committee unanimously resolved
C to terminate his probation. The report of the Manager was not
extracted in the enclosure to the termination order but was
extracted in the counter filed in the case and read as follows:
(SCC p. 388, para 3)
“It will be evident from the above that the Principal’s stay will
D not be in the interest of the Institution. It is also evident that the
seriousness of the lapses is enough to justify dismissal but no
educational institution should take all this botheration. As such
my suggestion is that our purpose will be served by termination
of his services. Why, then, we should enter into any botheration.
E For this, i.e., for termination of his period of probation, too, the
approval of the D.I.O.S. will be necessary. Accordingly, any
delay in this matter may also be harmful to our interests.
Accordingly, I suggest that instead of taking any serious action,
the period of probation of Shri Inder Pal Gupta be terminated
F without waiting for the period to end.”
It was held by Venkataramiah, J. (as he then was) (p. 392)
that the letter of termination referred to the resolution of
the Managing Committee, that the said resolution was made
part of the order as an enclosure and that the resolution in
G its turn referred to the report of the Manager. A copy of the
Manager’s report had been filed along with the counter and the
said report was the “foundation”. Venkataramiah, J. (as he then
was) held that the Manager’s report contained words amounting
to a stigma. The learned Judge said: “This is a clear case
where the order of termination issued is merely a
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camouflage for an order imposing a penalty of termination A
of service on the ground of misconduct …”, that these
findings in the Manager’s report amounted to a “mark of
disgrace or infamy” and that the appellant there was visited
with evil consequences. The officer was reinstated with all the
benefits of back wages and continuity of service.
B
34. It will be seen from the above case that the resolution of the
Committee was part of the termination order being an enclosure
to it. But the offensive part was not really contained in the order
of termination nor in the resolution which was an enclosure to the
order of termination but in the Manager’s report which was
referred to in the enclosure. The said report of the Manager was C
placed before the Court along with the counter. The allegations in
the Manager’s report were the basis for the termination and the
said report contained words amounting to a stigma. The
termination order was, as stated above, set aside.
35. The above decision is, in our view, a clear authority for D
the proposition that the material which amounts to stigma
need not be contained in the order of termination of the
probationer but might be contained in any document
referred to in the termination order or in its annexures.
Obviously, such a document could be asked for or called E
for by any future employer of the probationer. In such a
case, the order of termination would stand vitiated on the
ground that no regular enquiry was conducted. We shall
presently consider whether, on the facts of the case before us,
the documents referred to in the impugned order contain any
stigma.” F

(emphasis supplied)
9. In the case of Pavanendra Narayan Verma vs. Sanjay
Gandhi PGI of Medical Sciences & Anr.3, the Court observed thus: -
“21. One of the judicially evolved tests to determine whether in G
substance an order of termination is punitive is to see whether
prior to the termination there was (a) a full-scale formal enquiry
(b) into allegations involving moral turpitude or misconduct which
(c) culminated in a finding of guilt. If all three factors are present
3
(2002) 1 SCC 520 H
386 SUPREME COURT REPORTS [2020] 3 S.C.R.

A the termination has been held to be punitive irrespective of the
form of the termination order. Conversely if any one of the three
factors is missing, the termination has been upheld.”
In the present case, all the three elements are attracted, as a
result of which it must follow that the stated order is ex-facie stigmatic
B and punitive. Such an order could be issued only after subjecting the
incumbent to a regular inquiry as per the service rules. As a matter of
fact, the Internal Complaints Committee had recommended to proceed
against the appellant appropriately but the Executive Council proceeded
under the mistaken belief that in terms of clause 7 of the contract, it was
open to the Executive Council to terminate the services of the appellant
C without a formal regular inquiry as per the service rules. Indisputably, in
the present case, the Internal Complaints Committee was constituted in
reference to the complaints received from the girl students about the
alleged misconduct committed by the appellant, which allegations were
duly inquired into in a formal inquiry after giving opportunity to the appellant
D and culminated with the report recording finding against the appellant
with recommendation to proceed against him.
10. Upon receipt of complaints from aggrieved women (girl
students of the University) about the sexual harassment at workplace
(in this case, University campus), it was obligatory on the Administration
E to refer such complaints to the Internal Committee or the Local
Committee, within the stipulated time period as predicated in Section 9
of the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 (for short, ‘the 2013 Act’). Upon
receipt of such complaint, an inquiry is required to be undertaken by the
Internal Committee or the Local Committee in conformity with the
F stipulations in Section 11 of the 2013 Act. The procedure for conducting
such inquiry has also been amplified in the 2015 Regulations. Thus
understood, it necessarily follows that the inquiry is a formal inquiry
required to be undertaken in terms of the 2015 Regulations. The allegations
to be inquired into by such Committee being of “sexual harassment”
G defined in Section 2(n) read with Section 3 of the 2013 Act and being a
serious matter bordering on criminality, it would certainly not be advisable
to confer the benefit on such employee by merely passing a simple order
of termination. Such complaints ought to be taken to its logical end by
not only initiating departmental or regular inquiry as per the service rules,
but also followed by other actions as per law. In such cases, a regular
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inquiry or departmental action as per service rules is also indispensable A
so as to enable the employee concerned to vindicate his position and
establish his innocence. We say no more.
11. A priori, we have no hesitation in concluding that the impugned
termination order dated 30.11.2017 is illegal being ex-facie stigmatic as
it has been issued without subjecting the appellant to a regular inquiry as B
per the service rules. On this conclusion, the appellant would stand
reinstated, but whether he should be granted backwages and other benefits
including placing him under suspension and proceeding against him by
way of departmental or regular inquiry as per the service rules, is, in our
opinion, a matter to be taken forward by the authority concerned in
accordance with law. We do not intend to issue any direction in that C
regard keeping in mind the principle underlying the exposition of the
Constitution Bench in Managing Director, ECIL, Hyderabad & Ors.
vs. R. Karunakar & Ors.4. In that case, the Court was called upon to
decide as to what should be the incidental order to be passed by the
Court in case after following necessary procedure, the Court/Tribunal D
was to set aside the order of punishment. The Court observed thus: -
“31. ……………….
Where after following the above procedure, the Court/
Tribunal sets aside the order of punishment, the proper
relief that should be granted is to direct reinstatement of E
the employee with liberty to the authority/management to
proceed with the inquiry, by placing the employee under
suspension and continuing the inquiry from the stage of
furnishing him with the report. The question whether the
employee would be entitled to the back-wages and other F
benefits from the date of his dismissal to the date of his
reinstatement if ultimately ordered, should invariably be
left to be decided by the authority concerned according to
law, after the culmination of the proceedings and depending
on the final outcome. If the employee succeeds in the fresh
inquiry and is directed to be reinstated, the authority should G
be at liberty to decide according to law how it will treat the
period from the date of dismissal till the reinstatement and
to what benefits, if any and the extent of the benefits, he
will be entitled. The reinstatement made as a result of the setting
4
(1993) 4 SCC 727 H
388 SUPREME COURT REPORTS [2020] 3 S.C.R.

A aside of the inquiry for failure to furnish the report, should be
treated as a reinstatement for the purpose of holding the fresh
inquiry from the stage of furnishing the report and no more, where
such fresh inquiry is held. That will also be the correct position in
law.”
B (emphasis supplied)
Following the principle underlying the above quoted exposition,
we proceed to hold that even though the impugned order of termination
dated 30.11.2017 is set aside in terms of this judgment, as a result of
which the appellant would stand reinstated, but at the same time, due to
C flawed approach of the respondent No. 1 – University, the entitlement
to grant backwages is a matter which will be subject to the outcome of
further action to be taken by the University as per the service rules and
in accordance with law.
12. Accordingly, this appeal partly succeeds. We set aside the
D impugned judgments and orders dated 30.1.2018 and 20.2.2018 passed
by the High Court including the order of termination dated 30.11.2017
issued under the signatures of the Vice-Chancellor of the respondent
No. 1 – University; and instead direct reinstatement of the appellant and
leave the question regarding backwages, placing him under suspension
and initiating departmental or regular inquiry as per the service rules, to
E be taken forward by the authority concerned in accordance with law.
13. The appeal is disposed of in the above terms. There shall be
no order as to costs. Pending interlocutory applications, if any, shall stand
disposed of.

F
Kalpana K. Tripathy Appeal disposed of.

G

H
[2020] 3 S.C.R. 389 389

THE BRANCH MANAGER, INDIGO AIRLINES, A
KOLKATA & ANR.
v.
KALPANA RANI DEBBARMA & ORS.
(Civil Appeal Nos. 778-779 of 2020) B
JANUARY 28, 2020
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ]
Consumer Protection Act, 1986:
s. 2(1)(g) – Complaint against airlines – Alleging that the C
complainants were left behind by the ground staff without informing
them about the departure of airline and that they were also not
accommodated in the next flight – District consumer court allowed
the complaint awarding compensation with 9% interest – In cross -
appeals before State Consumer Commission, compensation amount
D
enhanced – National Consumer commission dismissed the Revision
petition with cost on the Airlines – Appeal to Supreme Court – Held:
The nature of enquiry to be undertaken by consumer fora is limited
to the factum of deficiency in service and to award compensation
only if that fact is substantiated by the party alleging the same –
The initial burden to substantiate the factum of deficiency in service E
was on the complainants – The complainants failed to substantiate
the allegation of deficiency in service – The consumer fora in
complete disregard of the principles of pleadings and burden of
proof, unjustly shifted the onus on the Airlines – The National
Consumer Commission erroneously denied itself the Revisional
F
jurisdiction despite the fact that decisions assailed therein were
manifestly wrong and suffered from error of jurisdiction.
Allowing the appeals, the Court
HELD: 1. While dealing with a complaint filed before
consumer fora, the jurisdiction or the nature of enquiry to be G
undertaken by the consumer fora is limited to the factum of
deficiency in service and to award compensation only if that fact
is substantiated by the party alleging the same. The expression
‘deficiency in service’ has been defined in Section 2(1)(g) of the
Consumer Protection Act, 1986, to mean any fault, imperfection,
H
389
390 SUPREME COURT REPORTS [2020] 3 S.C.R.

A shortcoming or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or under any
law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in
relation to any service. Thus, the enquiry in such proceedings is
limited to grievance about deficiency in service, which is distinct
B
from the tortuous acts of the other party. [Paras 11 and 12][403-
G; 403-A-B; 404-B]
Ravneet Singh Bagga v. KLM Royal Dutch Airlines &
Anr (2000) 1 SCC 66 (paragraph 6) : [1999] 4 Suppl.
SCR 320– relied on
C
2. On a fair reading of the complaint and the evidence given
on the same lines, all that can be discerned is that the respondents
had reported at the “check-in counter” well in time and were
issued boarding passes for the flight, which was scheduled to
depart at 08:45 a.m., and that the flight took off leaving them
D (respondents) at the airport without informing them about the
departure. There is no assertion that no public announcement
was made at the boarding gate or on the T.V. screens displayed
across within the airport before closure of the boarding gate and
as to how they (respondents) were prevented or misled from
E reporting at the boarding gate, 25 (twenty-five) minutes before
the scheduled departure time (08:45 a.m.) of the flight in question,
and moreso before the boarding gates were actually closed at
08:58 a.m. [Para 12][405-G-H; 406-A-B]
3. The consumer fora committed manifest error in shifting
F the burden on the appellants and drawing adverse inference
against them for having failed to produce evidence regarding
announcements having been made to inform the passengers
including the respondents to arrive at the boarding gate before
its closure at 08:58 a.m. The appellants had clearly stated that as
per the standard practice, such announcements are made at the
G boarding gate itself and the record in that behalf is not maintained
by the Airlines (appellants), but by the airport authorities. The
need to prove that fact would have arisen only if the respondents
had clearly pleaded all relevant material facts and also discharged
their initial burden of producing proof regarding deficiency in
H service by the ground-staff of the appellants at the airport after
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 391
KALPANA RANI DEBBARMA & ORS.

issuing boarding passes and before the closure of the boarding A
gate and departure of the flight. [Para 12][406-B-D]
4. The approach of the consumer fora is in complete
disregard of the principles of pleadings and burden of proof. First,
the material facts constituting deficiency in service are blissfully
absent in the complaint as filed. Second, the initial onus to B
substantiate the factum of deficiency in service committed by the
ground-staff of the Airlines at the airport after issuing boarding
passes was primarily on the respondents. That has not been
discharged by them. The consumer fora, however, went on to
unjustly shift the onus on the appellants because of their failure
to produce any evidence. In law, the burden of proof would shift C
on the appellants only after the respondents/complainants had
discharged their initial burden in establishing the factum of
deficiency in service. [Para 16][411-D-E]
5. Further, there is no averment in the complaint or
deposed to by the witness of the complainants/respondents as to D
how the ground-staff of the appellant-Airlines was responsible
and that it was not their own acts of commission or omission. It is
not the case of the respondents that they were prevented, misled
or obstructed by the ground-staff of the appellants from reaching
at the boarding gate well in time and until it was closed treating E
as ‘Gate No Show’. It is also not the case of respondents that
they had sought assistance of the ground-staff of the appellants
and that was denied to them. In absence of such a case made out
in the complaint or in the deposition and other evidence produced
by the respondents, it is unfathomable as to how the respondents
had substantiated the allegation of deficiency in service by the F
ground-staff of the appellants. Such a complaint ought not to
proceed further for want of material facts constituting deficiency
in service. [Para 13][408-H; 409-A-C]
6. The fact that the respondents were not accommodated
in the next flight for Agartala without payment of airfare, per se, G
cannot be regarded as deficiency in service in relation to the
contract which stood discharged and accomplished after ‘Gate
No Show’ by the respondents and departure of the flight in terms
of Articles 8.2 and 8.3 of the CoC. [Para 14][409-D]
H
392 SUPREME COURT REPORTS [2020] 3 S.C.R.

A 7. The appellants at best were liable only to refund the
Government and airport fees and/or taxes (if applicable) and not
liable for any loss caused to the passenger(s). Had it been a case
of ‘denied boarding’, the obligation of the appellants would have
been somewhat different including to accommodate the
passengers without insisting for air-ticket charges for the next
B
flight available for reaching the desired destination. Therefore,
in case of ‘Gate No Show’, not acceding to the request of the
respondents until they paid air charges for the next flight, may or
may not be a case of tortuous claim which, however, can be
proceeded before any other forum but not consumer fora. For,
C the contract relating to travel plan of the respondents upon issue
of the boarding passes at the airport check-in counters, was
accomplished after ‘Gate No Show’ and resultantly closure of the
boarding gate at 08:58 a.m. The deficiency in service must be
ascribed only in respect of the stated contractual obligations of
the parties. [Para 14][410-B-D]
D
8. The CoC is binding on both parties. The respondents,
however, urge that in the present case, the air ticket did not
contain the reference to the CoC. It is, however, not the case of
the respondents (who are well educated, as respondent Nos. 1
and 2 claim to be Engineers working in Government
E establishment), that the website of the appellant-Airlines does
not display the CoC or that the same was not made available at
the airport check-in counter for inspection, which is the standard
operating procedure followed by all the airlines. No such assertion
has been made in the complaint as filed. [Para 15][410-E;
F 411-B-C]
Interglobe Aviation Limited v. N. Satchidanand (2011)
7 SCC 463; [2011] 6 SCR 1116 – relied on.
9. The allegation that the boarding passes were snatched
away by the ground-staff of the appellants at the airport itself is
G blissfully vague and bereft of any material facts. It is not the case
of the respondents that after the boarding passes were issued to
them, they did not read the same to reassure themselves about
the relevant information and the departure time of the flight
indicated therein including the reporting time at the boarding
H gate. Nor is the case of the respondents that they had read the
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 393
KALPANA RANI DEBBARMA & ORS.

boarding pass and it did not contain the relevant information A
including regarding the necessity of reporting 25 (twenty-five)
minutes before the departure time at the boarding gate. Nothing
of this sort is either pleaded or stated in the evidence by the
respondents. [Para 17][412-A-C]
The Manager, Southern Region, Air India, Madras & B
Ors. v. V. Krishnaswamy 1994 (2) C.P.C. 171 –
approved
10. No doubt, the consumer is the king and the legislation
is intended to safeguard and protect the rights and interests of
the consumer, but that does not mean that he is extricated from C
the obligations under the contract in question much less to
observe prudence and due care. The respondents have not
offered any explanation for their inaction nor have mentioned
about any act of commission or omission by the ground-staff of
the appellant-Airlines at the airport during this period. [Para
18][412-E-F; 413-A-B] D

11. There is no contractual obligation on the airlines to
escort every passenger, after the boarding pass is issued to him
at the check-in counter, up to the boarding gate. Further, the
Airlines issuing boarding passes cannot be made liable for the
misdeeds, inaction or so to say misunderstanding caused to the E
passengers, until assistance is sought from the ground-staff of
the airlines at the airport well in time. It is not the case of the
respondents that the boarding gate was changed at the last minute
or there was any reason which created confusion attributable to
airport/airlines officials, so as to invoke an expansive meaning of F
‘denied boarding’. The fact situation of the present case is clearly
one of ‘Gate No Show’, the making of the respondents and not
that of ‘denied boarding’ as such. [Para 19][413-B-D]
Finnair Oyj v. Timy Lassooy Decided on 4.10.2012 in
Case C-22/11; Denise McDonagh v. Ryanair Ltd. G
Decided on 31.1.2013 in Case C-12/11 – referred to.
12. The question of due care by the ground-staff of the
appellant-Airlines would arise when the passengers are physically
under their complete control. That is possible after the
H
394 SUPREME COURT REPORTS [2020] 3 S.C.R.

A passengers have boarded the aircraft or may be in a given case
at the operational stage whilst facilitating their entry to the
boarding gate. In the present case, there is no assertion in the
complaint or in the oral evidence produced by the respondents
that they (respondents) had made some effort to take guidance
or assistance of ground-staff of the appellant-Airlines at the airport
B
after the boarding passes were issued to them for reaching at the
boarding gates and that such assistance was not provided to them.
[Para 22][414-C-E]
Interglobe Aviation Limited v. N. Satchidanand (2011)
7 SCC 463; [2011] 6 SCR 1116 – distinguished.
C
13. The CAR is only executive instructions, which has been
issued for guidance of the duty holders/stakeholders and to
implement the scheme of the act and do not have the force of law.
Concededly, clause 3.2 if read as a whole, in no way would apply
to a case of ‘Gate No Show’, which is markedly different than
D ‘denied boarding’. [Para 24][416-A-B]
Joint Action Committee of Airlines Pilots’ Association
of India & Ors. v. the Director General of Civil Aviation
& Ors. (2011) 5 SCC 435 : [2011] 5 SCR 1019 – relied
on.
E
14. It would not be appropriate to cast an obligation on any
airlines to delay the departure of an aircraft beyond the scheduled
time of the departure and to await late arrival of any passenger,
whosoever he may be, howsoever highly or lowly placed. The
appellant-Airlines cannot be blamed for the non-reporting of the
F respondents at the boarding gate before 08:20 a.m. and in any
case before 08:58 a.m., when the boarding gate was finally closed.
[Para 25][416-C-D]
The Manager, Southern Region, Air India, Madras &
Ors. v. V. Krishnaswamy 1994 (2) C.P.C. 171 –
G approved.
15. The National Commission erroneously denied itself of
the jurisdiction to entertain the revision petitions despite the
fact that decisions assailed in the revision petitions were
manifestly wrong and suffered from error of jurisdiction. In the
H
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 395
KALPANA RANI DEBBARMA & ORS.

fact situation of the present case, the National Commission ought A
to have exercised its jurisdiction and corrected the palpable and
manifest error committed by the two consumer fora below.
[Para 20][413-E-F]
Ruby (Chandra) Dutta v. United India Insurance Co.
Ltd. (2011) 11 SCC 269 : [2011] 3 SCR 977; Dr. Bikas B
Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo) Decided
on 22.2.2018 in Appeal Case No. A/42/2017 – referred
to
16. So far as the suggestions given by the Amicus Curiae
for issuing directions to all the airlines to abide by uniform practice C
is concerned, it is left to the competent authority (the DGCA) to
consider the same and after interacting with all the stakeholders,
take appropriate decision and issue instructions in that behalf,
as may be advised. The competent authority (the DGCA) may do
so within a reasonable time, preferably within six months from
receipt of a copy of the present judgment or any representation D
in that behalf. [Para 26][416-E-F]
Case Law Reference
[1999] 4 Suppl. SCR 320 relied on Para 11
[2011] 6 SCR 1116 relied on Para 15 E
(1994) 2 C.P.C. 171 approved Para 17
[2011] 3 SCR 977 referred to Para 20
[2011] 6 SCR 1116 distinguished Para 22
[2011] 5 SCR 1019 relied on Para 24 F

(1994) 2 C.P.C. 171 approved Para 25
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 778-
779 of 2020.
From the Judgment and Order dated 12.09.2018 of the National G
Consumer Disputes Redressal Commission, New Delhi in Revision
Petition Nos. 1520-1521 of 2018.
Rajiv Dutta, Sr. Adv., Sanjeev Kr. Singh, Aman Jha, Rahul Rajan,
Raghvendra P. Singh, Advs. (A.Cs.)
H
396 SUPREME COURT REPORTS [2020] 3 S.C.R.

A Shyam Divan, Sr. Adv., Ajit Warrier, Angad Kochhar, Ms. Tanvi
Dubey, S. S. Shroff, Advs. for the Appellants.
Amlan Kumar Ghosh, Adv. for the Respondents.
The Judgment of the Court was delivered by
B A. M. KHANWILKAR, J.
1. Leave granted.
2. The appellants, who are representatives of two different
branches of an aviation company operating low cost air carrier under
the name and style of M/s. Indigo Airlines have filed these appeals,
C taking exception to the judgment and order dated 12.9.2018 passed by
the National Consumer Disputes Redressal Commission, New Delhi (for
short, ‘the National Commission’) in Revision Petition Nos. 1520-1521/
2018. Thereby, the revision petitions filed by the appellants came to be
rejected and the judgment and order dated 22.8.2017 passed by the District
D Consumer Disputes Redressal Forum, West Tripura, Agartala (for short,
‘the District Forum’) in Case No. CC-35/2017, as modified by the Tripura
State Consumer Disputes Redressal Commission, Agartala (for short,
‘the State Commission’) vide judgment and order dated 22.2.2018 in
Appeal Case Nos. A.53.2017 and A.61.2017, directing the appellants to
pay to the respondents a compensation of Rs.51,432/- (Rupees fifty one
E thousand four hundred thirty two only) within two months failing which
to pay the same alongwith interest at the rate of 9% per annum, came to
be confirmed. Additionally, a cost of Rs.20,000/- (Rupees twenty thousand
only) for filing the revision petitions against such meagre compensation
amount was also imposed.
F 3. At the outset, the appellants made it clear that they were not so
much concerned about the amount of compensation/cost ordered to be
paid to the respondents, but have serious grievance about the sweeping
observations made by the three fora, which were untenable, both on
facts and in law. The appellants agreed to deposit a sum of Rs.1,00,000/
- (Rupees one lakh only) in the District Forum, which was a condition
G
precedent for issuing notice to the respondents vide order dated
13.11.2018. That amount has been deposited and also withdrawn by the
respondents. The matter, therefore, proceeded with the clear
understanding that the appellants will not insist for refund of the amount,
even if the appeals succeed on merits. The respondents, though entered
H
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 397
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

appearance, the Court requested Mr. Rajiv Dutta, learned senior counsel A
to appear as Amicus Curiae to assist the Court.
4. Briefly stated, the respondents had booked air ticket(s) vide
PNR No. IHRNSE to travel from Kolkata to Agartala on 8.1.2017 i.e.
Sunday in flight No. 6E-861, operated by the appellant-Airlines, departing
at 08:45 a.m. According to the respondents, they had reported well in B
time at the check-in counter of the appellant-Airlines at Netaji Subhash
Chandra Bose (Domestic) Airport, Kolkata and after completing
necessary formalities, they were issued boarding passes for travelling
by the stated flight. However, the respondents were left behind by the
ground-staff of the appellant-Airlines and the concerned flight departed,
without any information about its departure given to the respondents. C
The respondents then requested the ground-staff of the appellant-Airlines
to accommodate them in the next available flight for Agartala from
Kolkata. Even that request was turned down, as the respondents did not
have requisite funds to procure the air-tickets for the same. Instead, the
ground-staff of the appellant-Airlines snatched away the boarding passes D
of the respondents, as a result of which the respondents had no other
option but to stay back at Kolkata in a hotel for two nights, and after
arranging for funds, they left by a flight of the appellant-Airlines on
10.1.2017. Resultantly, the respondents had to incur expenditure for
staying back in a hotel at Kolkata for two nights. They also had to incur
loss of salary, loss of education of the two accompanying children E
(respondent Nos. 3 and 4) of respondent Nos. 1 and 2 and mental agony,
harassment, suffering and frustration. Initially, the respondents sent a
legal notice through their Advocate on 28.1.2017 demanding compensation
of Rs.3,32,754/- (Rupees three lakhs thirty-two thousand seven hundred
fifty-four only). As no response thereto was received, the respondents F
filed a complaint before the District Forum reiterating the grievance
made in the legal notice and prayed for direction to the appellants to pay
a total sum of Rs.3,77,770/- (Rupees three lakhs seventy seven thousand
seven hundred seventy only) alongwith interest at the rate of 12% per
annum. The said complaint was contested by the appellants by filing
written statement raising preliminary objection and also asserting that G
the flight in question had to depart after the boarding gate was closed at
08:58 a.m. By that time, the respondents had not reported at the boarding
gate despite the stipulation that the boarding gate would be closed 25
minutes prior to the departure time as per the Conditions of Carriage
H
398 SUPREME COURT REPORTS [2020] 3 S.C.R.

A (for short, ‘the CoC’), which were binding on all concerned, as expounded
by this Court in Interglobe Aviation Limited vs. N. Satchidanand1.
The respondents having failed to report at the boarding gate before its
closure for reasons best known to them, the ground-staff of the appellant-
Airlines had no other option but to treat it as ‘Gate No Show’ in terms of
article 8.2 of the CoC and to facilitate the flight to depart as per the
B
permission given by the Air Traffic Control (ATC) for departure. The
respondents were responsible for the situation for which the appellants
cannot be made liable, much less on the ground of deficiency in service.
As a matter of fact, the scheduled time of departure was 08:45 a.m. In
terms of article 8.2 of the CoC, the boarding gate was supposed to be
C closed at 08:20 a.m., but as the flight was delayed for some time due to
logistical reasons beyond the control of the appellant-Airlines, the boarding
gate was actually closed at 08:58 a.m. Despite that, the respondents
failed to report at the boarding gate in time, although boarding passes
were issued much earlier at around 07:35 a.m. as asserted by the
respondents. The appellants also asserted that in terms of the stipulations
D
in the CoC, in the present situation, the appellants were required to merely
refund the Government and airport fees and/or taxes, as applicable and
forfeit the ticket amount. Being a case of ‘Gate No Show’, the appellants
were not obliged to accommodate the respondents in the next flight going
to Agartala and in any case, without the respondents offering payment
E for the fresh air tickets in that regard. In short, the appellants prayed for
dismissal of the complaint.
5. The District Forum, after analysing the plea taken by both sides
and going through the evidence produced by the parties, allowed the
complaint on the finding that as per clause 8.2 of the CoC, the ground-
F staff of the appellant-Airlines was expected to make subsequent
announcements to secure the presence of the respondents and facilitate
them to board the flight. However, no evidence was forthcoming that
such announcements were made by the ground-staff of the appellant-
Airlines. Further, in the e-tickets issued by the appellants, there is no
indication about the fact that the passengers are required to report at the
G boarding gate 25 (twenty-five) minutes prior to the departure of the
flight. What is mentioned is only that the check-in begins 2 (two) hours
prior to the flight time for seat assignment and closes 45 (forty-five)
minutes prior to the scheduled departure. Although the boarding passes
were not produced on record, the District Forum went on to observe
1
H (2011) 7 SCC 463
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 399
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

that in the boarding pass(es) also, nothing was written to show that the A
passenger must report at the boarding gate 25 (twenty-five) minutes
prior to the departure of the flight. In fact, in the same paragraph, the
District Forum has adverted to the plea of the respondents that the
boarding passes were snatched away from them by the ground-staff of
the appellant-Airlines at the airport. It further held that there was no
B
evidence to show that any assistance was provided by the ground-staff
of the appellant-Airlines to the respondents for reaching upto the boarding
gate in time. Moreover, the ground-staff refused to take the complaint
of the respondents and instead snatched away the boarding passes from
them, leaving them in helpless situation at the airport and forcing them to
stay in a hotel for two days at Kolkata. On such findings, the District C
Forum proceeded to award compensation to the respondents in the sum
of Rs.16,432/- (Rupees sixteen thousand four hundred thirty two only)
towards airfare for travel to Agartala, Rs.10,000/- (Rupees ten thousand
only) towards hotel expenditure, Rs.10,000/- (Rupees ten thousand only)
towards mental agony, harassment and suffering and Rs.5,000/- (Rupees
D
five thousand only) towards litigation costs, total amounting to Rs.41,432/
- (Rupees forty-one thousand four hundred thirty two only) to be paid
within two months, failing which to bear interest at the rate of 9% per
annum.
6. The appellants carried the matter in appeal before the State
Commission being Appeal Case No. A.61.2017, assailing the judgment E
and order passed by the District Forum. At the same time, the respondents
filed cross-appeal being Appeal Case No. A.53.2017 for enhancement
of compensation. Both the appeals came to be disposed of by the State
Commission by the common judgment and order dated 22.2.2018. The
State Commission, more or less affirmed the findings and conclusions F
recorded by the District Forum by observing that no evidence was
forthcoming that proper assistance was given to the respondents to
facilitate them to board the flight before the scheduled departure. It also
observed that no oral evidence was produced by the appellants whatsoever
including regarding the announcements made to invite the attention of
the respondents for reporting at the boarding gate. The State Commission G
also went on to observe that after issuing boarding passes, it is the
obligation of the airlines to provide assistance to the passengers to facilitate
them to board the flight before the boarding gate closes. The State
Commission, however, modified the order of the District Forum to the
limited extent of enhancing the awarded amount towards mental agony, H
400 SUPREME COURT REPORTS [2020] 3 S.C.R.

A harassment and suffering from Rs.10,000/- (Rupees ten thousand only)
to Rs.20,000/- (Rupees twenty thousand only) and resultantly, the total
sum of Rs.41,432/- (Rupees forty-one thousand four hundred thirty-two
only) was enhanced to Rs.51,432/- (Rupees fifty-one thousand four
hundred thirty-two only).
B 7. Feeling aggrieved, the appellants carried the matter to the
National Commission by way of Revision Petition Nos. 1520-1521/2018.
The National Commission confirmed the findings and conclusions
recorded by the two consumer fora and dismissed the revision petitions
with observation that the appellants had chosen to challenge the order(s)
providing for meagre compensation and showed no interest to settle the
C matter. The revision petitions were dismissed with costs of Rs.20,000/-
(Rupees twenty thousand only).
8. Feeling aggrieved, the present appeals have been filed by the
appellants, assailing the concurrent findings and conclusions of the three
consumer fora. The principal grievance of the appellants is that the three
D consumer fora have failed to consider the principles of pleadings and
burden of proof and have erroneously held that the appellants were liable
for deficiency in service. This conclusion has been recorded in absence
of any pleading or evidence laid before the consumer fora to show that
the respondents had reported to the boarding gate well in time i.e. 25
E (twenty-five) minutes prior to the scheduled departure of the flight in
question, as required in terms of the CoC. They had not even pleaded or
adverted to the circumstances which prevented them from reporting at
the boarding gate before the stipulated time. In fact, it was a case of
‘Gate No Show’ by the respondents and not one of ‘denied boarding’ as
such. Further, the deficiency in service must be in relation to the
F contractual obligation and not on the basis of sympathy and matters
extraneous thereto. It is urged that the respondents had clearly failed to
plead and prove some fault, imperfection, shortcoming or inadequacies
in the quality, nature and manner of performance which was required to
be performed by the appellants or their ground-staff at the airport in
G reference to the contract, which was sine qua non for invoking the
remedy before the consumer fora as expounded in Ravneet Singh
Bagga vs. KLM Royal Dutch Airlines & Anr.2. The respondents have
not pleaded or deposed about their whereabouts and efforts taken by
them between the time when the boarding passes were issued to them
2
H (2000) 1 SCC 66 (paragraph 6)
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 401
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

(at 07:35 a.m.) and until the boarding gate was closed (at 08:58 a.m.) or A
for that matter, the scheduled departure time (of 08:45 a.m.). The airlines
is not expected to wait for the passengers until their arrival at the boarding
gate and is obliged to close the boarding gate as soon as permission to
‘Pushback’ and ‘Start-up’ is received from the ATC as per the Civil
Aviation Requirements (for short, ‘the CAR’) issued by the Director
B
General of Civil Aviation (for short, ‘the DGCA’). It is stated that 171
passengers were booked to travel on the flight in question, out of whom
only 7 (seven) including the 4 (four) respondents were treated as ‘Gate
No Show’ and 164 boarded the flight well in time. The thrust of the
grievance of the appellants is that the consumer fora have committed
jurisdictional error in not considering the fact that there was no pleading, C
much less tangible evidence produced, by the respondents to substantiate
the fact that it was a case of deficiency in service in respect of the
contractual obligation of the appellants. Thus, the burden of proof was
wrongly shifted on the appellants. Further, the consumer fora have made
sweeping observations which cannot be countenanced in law.
D
9. Respondent Nos. 1 and 2 who are also espousing the cause of
respondent nos. 3 and 4 are duly represented by the learned counsel
engaged by them. They have supported the findings and conclusions
recorded by the consumer fora and would contend that no interference
is warranted in the present appeals. As this Court had additionally
appointed an Amicus Curiae to assist the Court, he, besides making E
oral submissions has submitted written note and a report suggesting
formulation of some guidelines or directions in view of the increasing
demand for air travel because of improved purchasing capacity of the
passengers and their growing need to achieve timelines including
promotional schemes like UDAN (Ude Desh Ka Naagrik), a flagship F
scheme of the Government of India introduced to enable air operations
on unreserved routes, connecting regional and rural areas, thereby making
air travel affordable for masses. The learned Amicus Curiae submits
that the DGCA guidelines should be more humane and passenger-friendly,
considering the fact that the passenger-profile of air passengers has
become more inclusive, covering passengers from hinterlands and G
country-side cutting across diverse social and income groups. He has
commended to us to expand the meaning of ‘denied boarding’ to include
the case such as the present one, inasmuch as, the fact that the passenger
is under obligation to report before the scheduled time at the check-in
counter and/or boarding gate, that should not extricate the airlines’ staff H
402 SUPREME COURT REPORTS [2020] 3 S.C.R.

A from facilitating passage of the passenger after issuance of boarding
pass and secure his/her presence at the boarding gate before the closure
of the boarding gate. He has invited our attention to stipulation in the
CAR, particularly in clause 3.2.1 thereof, which pertains to cases of
‘denied boarding’ due to overbooking by the airlines or such other
operational reasons including cancellation of flight due to strike at the
B
airport of departure or extraordinary circumstances such as volcanic
eruption leading to the closure of the airspace, as expounded by the
Third Chamber of Court of Justice of the European Union in Finnair
Oyj vs. Timy Lassooy3 and Denise McDonagh vs. Ryanair Ltd.4. He
has suggested that direction be issued to all air carriers: (a) to bring in
C uniformity in closure of check-in counters and boarding gates across all
the air carriers operating in and out of India as per their domestic/
international specifications; (b) to display/highlight on the boarding pass
itself, the necessary details relating to check-in, boarding, closure of
boarding gates, mode of contract etc. in vernacular and English language
if already not done; (c) to widely display the Charter of Rights to their
D
passengers, as well as, duties/obligations of the air carriers towards their
passengers at the respective check-in counters and their websites in
addition to duly inform the passengers about the same at the time of
issuing air-tickets; (d) to maintain and keep all the records relating to
arrival and departure of passengers including time of check-in, reportage
E at boarding gates, record of communications with the passengers in case
of delay in check-ins, reporting at boarding gate and final warning for
the passengers in cases of non-reporting at check-in counters/boarding
gates and post-factum upto three months i.e., from the date and time of
departure/arrival of the concerned flight; and (e) to mandatorily contact
those passengers, who are otherwise late in reporting at the check-in
F
counters/boarding gates through telephone/mobiles being a secured
channel of communication/interface between the air carrier and its
passengers.
10. We have heard Mr. Shyam Divan, learned senior counsel
appearing for the appellants, Mr. Amlan Kumar Ghosh, learned counsel
G for the respondents and Mr. Rajiv Dutta, learned Amicus Curiae.
11. The present appeals emanate from the complaint filed before
the consumer fora. While dealing with such a complaint, the jurisdiction

3
Decided on 4.10.2012 in Case C-22/11
H 4
Decided on 31.1.2013 in Case C-12/11
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 403
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

or the nature of enquiry to be undertaken by the consumer fora is limited A
to the factum of deficiency in service and to award compensation only if
that fact is substantiated by the party alleging the same. The expression
‘deficiency in service’ has been defined in Section 2(1)(g) of the
Consumer Protection Act, 1986, to mean any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of
B
performance which is required to be maintained by or under any law for
the time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any service.
This Court in Ravneet Singh Bagga (supra), therefore, opined as
follows:-
“6. The deficiency in service cannot be alleged without C
attributing fault, imperfection, shortcoming or inadequacy
in the quality, nature and manner of performance which is
required to be performed by a person in pursuance of a
contract or otherwise in relation to any service. The burden
of proving the deficiency in service is upon the person who D
alleges it. The complainant has on facts, been found to have not
established any wilful fault, imperfection, shortcoming or
inadequacy in the service of the respondent. The deficiency in
service has to be distinguished from the tortious acts of
the respondent. In the absence of deficiency in service the
aggrieved person may have a remedy under the common E
law to file a suit for damages but cannot insist for grant of
relief under the Act for the alleged acts of commission and
omission attributable to the respondent which otherwise
do not amount to deficiency in service. In case of bona fide
disputes no wilful fault, imperfection, shortcoming or inadequacy F
in the quality, nature and manner of performance in the service
can be informed (sic). If on facts it is found that the person or
authority rendering service had taken all precautions and
considered all relevant facts and circumstances in the course of
the transaction and that their action or the final decision was in
good faith, it cannot be said that there had been any deficiency in G
service. If the action of the respondent is found to be in
good faith, there is no deficiency of service entitling the
aggrieved person to claim relief under the Act. The
rendering of deficient service has to be considered and
decided in each case according to the facts of that case for H
404 SUPREME COURT REPORTS [2020] 3 S.C.R.

A which no hard and fast rule can be laid down. Inefficiency,
lack of due care, absence of bona fides, rashness, haste or
omission and the like may be the factors to ascertain the
deficiency in rendering the service.”
(emphasis supplied)
B 12. Thus, the enquiry in such proceedings is limited to grievance
about deficiency in service, which is distinct from the tortuous acts of
the other party. In this regard, we must immediately notice the assertion
of the respondents in the complaint filed before the District Forum to
ascertain whether the claim of deficiency in service in relation to the
C stated contract has been pleaded or otherwise. It will be useful to advert
to paragraph 1 of the complaint, which reads thus: -
‘‘1. That the Complainant Nos. 1, 2, 3 and 4 are the same family
members of above noted address and the Complainant No.1
alongwith her husband Sri Swadesh Debbarma, Complainant No.2
D and her two sons namely Master Albish Debbarma, Complainant
No.3 and Master Alex Debbarma, Complainant No.4 was coming
from Kolkata to Agartala through Airlines of the opposite parties
and accordingly the Complainant No.1 along with her family
members i.e. Complainant Nos. 2, 3 and 4 took air tickets vide
PNR No. IHRNSE under airlines of the opposite parties for
E Agartala Airport from Kolkata Subhash Chandra Bose (Domestic
Airport) on 08.01.2017 vide Flight No. 6E 861, departure time
08.45 a.m., Sunday and accordingly norms of the airlines of the
opposite parties, all are the Complainants reported before the
Airlines Counter of opposite party at Kolkata Airport on 08.01.2017
F and after observing all formalities the opposite party No.1 i.e.
authority of Indigo Airlines of Kolkata Airport issued Boarding
Pass in favour of all the Complainants for coming at Agartala
Airport from Kolkata Airport, but the opposite parties Airlines
authority of Kolkata Airport left all the Complainants at
Kolkata Airport and flight of opposite parties and opposite
G party No.1 did not boarded the Complainants in the said
flight for coming at Agartala from Kolkata airport as the
Complainants were inside the Airport building of Kolkata
Airport. But without boarded the Complainants in the said
flight, the flight of the opposite parties left the Complainants
H to Kolkata Airport without giving any information to them.
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 405
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

As a result all the Complainants have fallen with critical situation. A
At that time due to left them by the airlines of the opposite party
at Kolkata airport and at that time the Complainant No.1 and 2
filed a complaint by written to the office of the opposite party
No.1, Kolkata airport. But the office staff as well as Airport staff
of the Indigo i.e. opposite party No.1 did not accept the complaint
B
application of the Complainants and at that time office staff of
opposite party No.1 at Kolkata Airport forcibly snatched away
their boarding Pass which were issued by the Indigo Airlines
authority of Kolkata Airport from their hand of the Complainant
No.1 and 2 and requested the opposite party No.1 to consider
their matter of left them at Kolkata Airport by the Airlines of C
opposite party No.1 and the Complainant No.1 and 2 also requested
the opposite party No.1 to arrange to carry them by next flight of
your Airlines to Agartala Airport from Kolkata Airport, as at that
time no money was in hand of the Complainants to further purchase
air tickets for them to come to Agartala airport to Kolkata airport.
D
But the opposite party No.1 did not heed the request of the
Complainants, nor any arrangement to carry the Complainants
from Kolkata Airport to Agartala Airport in their home town and
lastly after failure to come back to Agartala from Kolkata airport,
the Complainants hopelessly return from Kolkata Airport with very
financial hardship and took a hotel room nearby the Kolkata Airport E
for staying purpose along with their minor two sons and they also
stayed in the hotel room for arranging money for purchasing further
air tickets for coming at Agartala airport from Kolkata Airport.’’
(emphasis supplied)
On the same lines, the witness examined on behalf of the F
respondents has deposed. The question is: whether the averments in the
complaint contain material facts with regard to deficiency in service
complained about? Even on a fair reading of the complaint and the
evidence given on the same lines, all that can be discerned is that the
respondents had reported at the “check-in counter” well in time and G
were issued boarding passes for flight No. 6E-861, which was scheduled
to depart at 08:45 a.m., and that the flight took off leaving them
(respondents) at the airport without informing them about the departure.
There is no assertion that no public announcement was made at the
boarding gate or on the T.V. screens displayed across within the airport
H
406 SUPREME COURT REPORTS [2020] 3 S.C.R.

A before closure of the boarding gate and as to how they (respondents)
were prevented or misled from reporting at the boarding gate 25 (twenty-
five) minutes before the scheduled departure time (08:45 a.m.) of the
flight in question, and moreso before the boarding gates were actually
closed at 08:58 a.m. Be that as it may, the consumer fora committed
manifest error in shifting the burden on the appellants and drawing
B
adverse inference against them for having failed to produce evidence
regarding announcements having been made to inform the passengers
including the respondents to arrive at the boarding gate before its closure
at 08:58 a.m. The appellants had clearly stated that as per the standard
practice, such announcements are made at the boarding gate itself and
C the record in that behalf is not maintained by the Airlines (appellants),
but by the airport authorities. The need to prove that fact would have
arisen only if the respondents had clearly pleaded all relevant material
facts and also discharged their initial burden of producing proof regarding
deficiency in service by the ground-staff of the appellants at the airport
after issuing boarding passes and before the closure of the boarding
D
gate and departure of the flight.
13. Concededly, boarding passes were issued to the respondents
at 07:35 a.m. at the check-in counters, whereafter they entered the
security channel area and like any other prudent passenger, were expected
to proceed towards the concerned boarding gate in right earnest. The
E appellants in the additional affidavit dated 30.1.2019 filed before this
Court have given graphic description of the layout of the airport and the
area in which the respondents were expected to move forward towards
the boarding gate. The relevant portion of the said affidavit reads thus:-
‘‘2. I say that for passengers to enter into the departure terminal
F of the domestic airport at Kolkata, there are six (6) terminal
departure gates on the first floor of the airport terminal through
which the passengers can enter the terminal building. The said
gates are numbered as Gate Nos. 1A, 1B, 2A, 2B, 3A and 3B and
all passengers booked on various airlines operating from this
G terminal can enter the airport through any of the six gates, subject
to verification of their photo identity by the officials of the Central
Industrial Security Forces (‘‘CISF’’).
3. I further say that there are four (4) portals at the Kolkata Airport
wherein the check in counters of different airlines are stationed,
H namely Portals A to D. The aforesaid four portals are situated at
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 407
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

the first floor of the departure terminal of the Kolkata Airport. A
Immediately after the said four portals, there are four (4) security
gates situated inside the Kolkata Airport, namely security Gate
Nos. 1 to 4. I say that these four security gates are manned by
the officials of the CISF and clearance of all the passengers is
subject to the security frisking undertaken by them. I say that the
B
time taken by the officials of CISF for security, frisking and
clearance of the passengers and their hand baggage (including
the waiting time) is not within the control of InterGlobe Aviation
Ltd.
4. I say that the check-in counters of InterGlobe at the
Kolkata Airport are stationed at ‘‘Portal B’’ and on one C
side of ‘‘Portal C’’ in the first floor of the Airport. I further
say that the said Portals are adjacent to security entry Gate
Nos. 1A, 1B, 2A and 2B situated at the first floor of the
Airport.
5. I say that as per the official records of the Petitioners, D
Respondents were booked to fly aboard IndiGo Flight No.
6E-861 from Kolkata to Agartala on 08.01.2017 under PNR
No. IHRNSR.
6. I say that to my knowledge, on 08.01.2017 i.e. the
scheduled date of travel in the present case, IndiGo flights E
departing from Kolkata to Agartala were allocated boarding
gates located at the ground floor of the Kolkata Airport
comprising a total of six (6) boarding gates i.e. from 23A to
23F.
7. I say that I have prepared a layout plan (not to scale) of the F
relevant sections of the Kolkata Airport and the same is annexed
herewith and marked as ‘‘Annexure A’’. From the said layout
plan, it would be evident that:
a. the distance from either of the check in Portals of
InterGlobe to the nearest security gate is only around G
10 metres.
b. the distance from any of the security gates to the
escalator/lift leading towards the boarding gates
(which are on the lower level i.e. on the ground floor)
is only around 5 metres. H
408 SUPREME COURT REPORTS [2020] 3 S.C.R.

A c. after traveling aboard the lift/escalator (which may
take maximum upto a minute), the walking distance
from the touch down point to the last boarding gate
on the ground floor i.e. Gate No.23-F is only around
125 meters. Obviously, the walking distance to the
other gates 23-E to 23-A is progressively lesser.
B
8. I further say that I am also filing certain photographs taken at
the Kolkata Airport on 03.12.2018 reflecting the location and layout
of Portals B and C, the security gates and the lift/escalator on the
first floor and the boarding gates at the ground floor. The said
photographs are annexed herewith and marked as Annexure-B
C (colly).
9. I further say that to my knowledge, the total capacity of IndiGo
Flight No.6E-861 was 180 passengers. I further say that as per
passenger manifesto maintained by the Airline, the total number
of passengers who were booked for travel on 08.01.2017 numbered
D 171. I also say that out of these 171 passengers, a total of 164
passengers (i.e. around 95% of the passengers) boarded and
travelled on IndiGo Flight No. 6E-861 and only 7 passengers
(including the Respondents herein) did not show up at the
concerned boarding gate within the stipulated time and were
E consequently declared as ‘Gate no show’.
10. I further say that to my knowledge, the layout of the entry
gates, check in-portals, security gates, lift/escalator to all the
boarding gates at the ground floor and the passage from the lift/
escalator to the said boarding gates at the Kolkata Airport, as
F depicted in the layout plan (Annexure A), has not undergone any
substantial changes between the date on which the Respondents
were scheduled to travel on Indigo Flight No. 6E-861. i.e.
08.01.2017, and the date of the present affidavit.’’
(emphasis supplied)
G As aforementioned, there is no averment in the complaint or the
evidence of the witness examined by the respondents to even remotely
suggest as to what prevented the respondents, after entering the security
channel area upon issue of boarding passes at 07:35 a.m., from reaching
at the boarding gate before 08:20 a.m. and in any case when the boarding
gate was actually closed at 08:58 a.m. Further, there is no averment in
H
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 409
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

the complaint or deposed to by the witness of the complainants/ A
respondents as to how the ground-staff of the appellant-Airlines was
responsible and that it was not their own acts of commission or omission.
It is not the case of the respondents that they were prevented, misled or
obstructed by the ground-staff of the appellants from reaching at the
boarding gate well in time and until it was closed treating as ‘Gate No
B
Show’. It is also not the case of respondents that they had sought
assistance of the ground-staff of the appellants and that was denied to
them. In absence of such a case made out in the complaint or in the
deposition and other evidence produced by the respondents, it is
unfathomable as to how the respondents had substantiated the allegation
of deficiency in service by the ground-staff of the appellants. Such a C
complaint ought not to proceed further for want of material facts
constituting deficiency in service.
14. The fact that the respondents were not accommodated in the
next flight for Agartala without payment of airfare, per se, cannot be
regarded as deficiency in service in relation to the contract which stood D
discharged and accomplished after ‘Gate No Show’ by the respondents
and departure of the flight in terms of Articles 8.2 and 8.3 of the CoC.
The same read thus: -
“8.2 Boarding
In order to maintain schedules, the boarding gate will be E
closed 25 minutes prior to the departure time. The Customers
must be present at the boarding gate not later than the time
specified by IndiGo when they check in or any subsequent
announcements made at the airport. Any Customer failing to
report at the boarding within the aforesaid timelines shall F
be treated as a “Gate No Show” and the ticket amount for
such Booking shall be forfeited by the Company. The
Customers are, however, entitled to a refund of the
Government and Airport Fees and/or Taxes (if applicable).
8.3 Failure to Comply G
IndiGo will not be liable to the Customer for any loss or
expense incurred due to their failure to comply with the
provisions of this Article.”
(emphasis supplied)
H
410 SUPREME COURT REPORTS [2020] 3 S.C.R.

A It is not the case of the respondents that the appellants had refused
to refund the Government and Airport fees and/or taxes, as may be
applicable. As aforesaid, the follow-up event of not accommodating the
respondents in the next available flight for Agartala until payment of air-
tickets would be of no avail, in the context of the contractual obligations
of both the parties in terms of the CoC. The appellants at best were
B
liable only to refund the Government and airport fees and/or taxes (if
applicable) and not liable for any loss caused to the passenger(s). Had it
been a case of ‘denied boarding’, the obligation of the appellants would
have been somewhat different including to accommodate the passengers
without insisting for air-ticket charges for the next flight available for
C reaching the desired destination. Therefore, in case of ‘Gate No Show’,
not acceding to the request of the respondents until they paid air charges
for the next flight, may or may not be a case of tortuous claim which,
however, can be proceeded before any other forum but not consumer
fora. For, the contract relating to travel plan of the respondents upon
issue of the boarding passes at the airport check-in counters, was
D
accomplished after ‘Gate No Show’ and resultantly closure of the
boarding gate at 08:58 a.m. At the cost of repetition, we hold that the
deficiency in service must be ascribed only in respect of the stated
contractual obligations of the parties.
15. Indubitably, the CoC is binding on both parties as predicated
E by this Court in N. Satchidanand (supra). We may usefully refer to
paragraph 31 of the said decision, where the Court observed thus: -
“31. The fact that the conditions of carriage contain the exclusive
jurisdiction clause is not disputed. The e-tickets do not contain the
complete conditions of carriage but incorporate the conditions of
F carriage by reference. The interested passengers can ask
the airline for a copy of the contract of carriage or visit the
website and ascertain the same. Placing the conditions of
carriage on the website and referring to the same in the e-
ticket and making copies of conditions of carriage available
G at the airport counters for inspection is sufficient notice in
regard to the terms of conditions of the carriage and will
bind the parties. The mere fact that a passenger may not
read or may not demand a copy does not mean that he will
not be bound by the terms of contract of carriage. We cannot
therefore, accept the finding of the High Court that the term
H
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 411
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

relating to exclusive jurisdiction should be ignored on the ground A
that the passengers would not have read it.”
(emphasis supplied)
These observations apply on all fours to the case in hand.
However, the State Commission distinguished this decision on the basis
of facts of the case disregarding the underlying principle expounded in B
the aforesaid extracted portion of the judgment of this Court. The
respondents, however, urge that in the present case, the air ticket did not
contain the reference to the CoC. It is, however, not the case of the
respondents (who are well educated, as respondent Nos. 1 and 2 claim
to be Engineers working in Government establishment), that the website C
of the appellant-Airlines does not display the CoC or that the same was
not made available at the airport check-in counter for inspection, which
is the standard operating procedure followed by all the airlines. No such
assertion has been made in the complaint as filed.
16. In our opinion, the approach of the consumer fora is in complete D
disregard of the principles of pleadings and burden of proof. First, the
material facts constituting deficiency in service are blissfully absent in
the complaint as filed. Second, the initial onus to substantiate the factum
of deficiency in service committed by the ground-staff of the Airlines at
the airport after issuing boarding passes was primarily on the respondents.
That has not been discharged by them. The consumer fora, however, E
went on to unjustly shift the onus on the appellants because of their
failure to produce any evidence. In law, the burden of proof would shift
on the appellants only after the respondents/complainants had discharged
their initial burden in establishing the factum of deficiency in service.
17. The appellants have produced a boarding pass issued in the F
name of the Advocate for the appellant, to illustrate that the same contains
the relevant information regarding the flight number, date, boarding time,
departure time and more importantly, the notification that boarding gate
closes 25 (twenty-five) minutes prior to the departure time and that
boarding gate numbers are subject to change, which may be seen from G
the screen(s) displayed at the airport for latest updates. Admittedly, the
boarding passes were issued to the respondents. Presumably, the same
must have set out similar information being the standard practice followed
by all the airlines. Indeed, the respondents have asserted in the complaint
that the boarding passes were snatched away by the ground-staff of the
H
412 SUPREME COURT REPORTS [2020] 3 S.C.R.

A appellants at the airport itself. As a matter of fact, this allegation is blissfully
vague and bereft of any material facts. Further, it is crucial to note that
it is not the case of the respondents that after the boarding passes were
issued to them, they did not read the same to reassure themselves about
the relevant information and the departure time of the flight indicated
therein including the reporting time at the boarding gate. Nor is the case
B
of the respondents that they had read the boarding pass and it did not
contain the relevant information including regarding the necessity of
reporting 25 (twenty-five) minutes before the departure time at the
boarding gate. Nothing of this sort is either pleaded or stated in the
evidence by the respondents. A similar plea that the boarding passes
C were snatched away by the ground-staff was taken in the case of The
Manager, Southern Region, Air India, Madras & Ors. vs. V.
Krishnaswamy5 decided by the National Commission on 19.7.1994 in
First Appeal No. 445/1992, which came to be rejected. Even in the
present case, the appellant-Airlines has denied the allegation and also
suggested to the witness examined by the respondents that the complaint
D
was false.
18. Concededly, it is the primary obligation of the passenger, who
has been issued boarding pass to undergo the security-check procedure
and reach at the boarding gate well before (at least 25 minutes before)
the scheduled departure time. No doubt, it is said that the consumer is
E the king and the legislation is intended to safeguard and protect the rights
and interests of the consumer, but that does not mean that he is extricated
from the obligations under the contract in question much less to observe
prudence and due care. It is not the case of the respondents that they
were delayed during the security check much less due to the acts of
F commission or omission of the ground-staff of the appellants. In fact,
nothing has been stated in the complaint or the evidence as to what
activities were undertaken by the respondents after issue of boarding
passes at the check-in counter at 07:35 a.m. until the departure of the
flight and in particular, closure of the boarding gate at 08:58 a.m. The
respondents having failed to take any initiative to ensure that they present
G themselves at the boarding gate before the scheduled time and
considering the layout of the check-in counter upto the boarding gate,
the respondents cannot be heard to complain about the deficiency in
service by the ground-staff. Notably, the distance between the check-in

5
H 1994 (2) C.P.C. 171
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 413
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

counter, where boarding passes were issued, upto the boarding gate is A
so insignificant that there could be no just reason for the respondents not
to report at the boarding gate between 07:35 a.m. till 08:58 a.m. The
respondents have not offered any explanation for their inaction nor have
mentioned about any act of commission or omission by the ground-staff
of the appellant-Airlines at the airport during this period.
B
19. As aforesaid, after boarding pass is issued, the passenger is
expected to proceed towards security channel area and head towards
specified boarding gate on his own. There is no contractual obligation on
the airlines to escort every passenger, after the boarding pass is issued
to him at the check-in counter, up to the boarding gate. Further, the
Airlines issuing boarding passes cannot be made liable for the misdeeds, C
inaction or so to say misunderstanding caused to the passengers, until
assistance is sought from the ground-staff of the airlines at the airport
well in time. It is not the case of the respondents that the boarding gate
was changed at the last minute or there was any reason which created
confusion attributable to airport/airlines officials, so as to invoke an D
expansive meaning of ‘denied boarding’. The fact situation of the present
case is clearly one of ‘Gate No Show’, the making of the respondents
and not that of ‘denied boarding’ as such.
20. The National Commission erroneously relied on the dictum in
Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd. 6 to deny E
itself of the jurisdiction to entertain the revision petitions despite the fact
that decisions assailed in the revision petitions were manifestly wrong
and suffered from error of jurisdiction. In the fact situation of the present
case, the National Commission ought to have exercised its jurisdiction
and corrected the palpable and manifest error committed by the two
consumer fora below. F

21. The State Commission has referred to the observations in
Dr. Bikas Roy & Anr. vs Interglobe Aviation Ltd. (IndiGo)7 decided
by the Commission taking the view that after issuing boarding pass, it is
the duty of the airlines’ authority to help the passengers, so that they can
board the flight well in time on completion of the security check-up. G
This is a sweeping observation. We do not agree with the same. We
have already taken the view that there is no obligation on the airlines to
escort every passenger after issuing him/her a boarding pass at the check-
6
(2011) 11 SCC 269
7
Decided on 22.2.2018 in Appeal Case No. A/42/2017 H
414 SUPREME COURT REPORTS [2020] 3 S.C.R.

A in counter until he/she reaches the boarding gate. That would be a very
tall claim to make. Indeed, in a given case, if the passenger encounters
difficulty or impediment to report at the boarding gate, he/she is expected
to seek assistance of the ground-staff of the concerned airlines well in
time. If such request is made, there is no reason to presume that the
ground-staff of the concerned airlines will not extend logistical assistance
B
to facilitate the passenger for reporting at the boarding gate in time.
That, however, would be a matter to be enquired into on case to case
basis. That question does not arise in the present case, as no such plea
has been taken in the complaint or the evidence given on behalf of the
respondents.
C 22. Additionally, the National Commission has invoked the principle
of right to care of the passengers. The question of due care by the
ground-staff of the appellant-Airlines would arise when the passengers
are physically under their complete control as it had happened in the
case of N. Satchidanand (supra). That is possible after the passengers
D have boarded the aircraft or may be in a given case at the operational
stage whilst facilitating their entry to the boarding gate. In the present
case, there is no assertion in the complaint or in the oral evidence produced
by the respondents that they (respondents) had made some effort to
take guidance or assistance of ground-staff of the appellant-Airlines at
the airport after the boarding passes were issued to them for reaching at
E the boarding gates and that such assistance was not provided to them.
23. A priori, the decisions of the European Courts referred to by
the National Commission in respect of the principle of right to care of
passengers will be of no avail in the fact situation of this case. For, in
those cases, the flight was cancelled due to strike at the airport of
F departure [as held in FinnairOyj. (supra)] and/or extraordinary
circumstances such as a volcanic eruption leading to the closure of the
airspace [as held in Ryanair Ltd. (supra)]. That principle cannot be
invoked in the fact situation of the present case not being a case of
‘denied boarding’ as referred to in the CAR. Clause 3.2 of the CAR
G reads thus: -
“3.2 Denied Boarding
3.2.1 When the number of passengers, who have been given
confirmed bookings for travel on the flight and who have reported
for the flight well within the specified time ahead of the departure
H of the flight, are more than the number of seats available, an airline
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 415
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

must first ask for volunteers to give up their seats so as to make A
seats available for other booked passengers to travel on the flight,
in exchange of such benefits/facilities as the airline, at its own
discretion, may wish to offer, provided airports concerned have
dedicated check-in facilities/gate areas which make it practical
for the airline to do so.
B
3.2.2 If the boarding is denied due to condition stated at Para
3.2.1 to passengers against their will, the airline shall not be liable
for any compensation in case alternate flight is arranged that is
scheduled to depart within one hour of the original schedule
departure time of the initial reservation. Failing to do so, the airline
shall compensate the passengers as per the following provisions: C

a) An amount equal to 200% of booked one-way basic fare
plus airline fuel charge, subject to maximum of INR 10,000, in
case airline arranges alternate flight that is scheduled to depart
within the 24 hours of the booked scheduled departure.
D
b) An amount equal to 400% of booked one-way basic fare
plus airline fuel charge, subject to maximum of INR 20,000, in
case airline arranges alternate flight that is scheduled to depart
more than 24 hours of the booked scheduled departure.
c) In case passenger does not opt for alternate flight, refund of E
full value of ticket and compensation equal to 400% of booked
one-way basic fare plus airline fuel charge, subject to maximum
of INR 20,000.
3.2.3 A passenger booked on connecting flights of the same airline
or of the other airline, shall be compensated by the airline of the F
first flight for the first leg in accordance with the provisions of
Para 3.2.2 of this CAR, when he has been delayed at the departure
station on account of denied boarding, but has arrived at the final
destination at least three hours later than the scheduled arrival
time.”
G
24. Indubitably, the CAR is only executive instructions, which do
not have the force of law. This Court in the case of Joint Action
Committee of Airlines Pilots’ Association of India & Ors. vs. the
Director General of Civil Aviation & Ors.8, had occasion to consider

8
(2011) 5 SCC 435 H
416 SUPREME COURT REPORTS [2020] 3 S.C.R.

A the question as to whether the CAR is a statute or a subordinate
legislation. The Court concluded that the CAR was only executive
instructions, which has been issued for guidance of the duty holders/
stakeholders and to implement the scheme of the act and do not have
the force of law. Concededly, clause 3.2 if read as a whole, in no way
would apply to a case of ‘Gate No Show’, which is markedly different
B
than ‘denied boarding’. In the facts of this case, it is unnecessary to
dilate on the argument of the learned Amicus Curiae that expansive
meaning be given to the expression ‘denied boarding’.
25. As a matter of fact, the coordinate Bench of the National
Commission in the case of The Manager, Southern Region (supra)
C has had occasion to observe that it would not be appropriate to cast an
obligation on any airlines to delay the departure of an aircraft beyond the
scheduled time of the departure and to await late arrival of any passenger,
whosoever he may be, howsoever highly or lowly placed. Even in that
case, the complainant had failed to present himself at the departure lounge
D in time and there was no kind of negligence or deficiency in service on
the part of the airlines. Similar situation obtains in the present case. The
appellant-Airlines cannot be blamed for the non-reporting of the
respondents at the boarding gate before 08:20 a.m. and in any case
before 08:58 a.m., when the boarding gate was finally closed.
E 26. That takes us to the suggestions given by the learned Amicus
Curiae for issuing directions to all the airlines to abide by uniform practice.
We refrain from doing so and leave that to the competent authority (the
DGCA) to consider the same and after interacting with all the
stakeholders, take appropriate decision and issue instructions in that behalf,
as may be advised. The competent authority (the DGCA) may do so
F within a reasonable time, preferably within six months from receipt of a
copy of this judgment or any representation in that behalf.
27. In view of the above, the impugned judgments and orders
passed by the District Forum, the State Commission and the National
Commission cannot be sustained and the same are, therefore, set aside
G and resultantly, the complaint filed by the respondents stands dismissed.
However, as assured by the appellants, no recovery of the amount
deposited by them as a condition precedent for issuance of notice, which
has already been withdrawn by the respondents, need be made from the
respondents.
H
THE BRANCH MANAGER, INDIGO AIRLINES, KOLKATA & ANR. v. 417
KALPANA RANI DEBBARMA & ORS. [A. M. KHANWILKAR, J.]

28. We place on record our word of appreciation for the able A
assistance given by the learned Amicus Curiae – Mr. Rajiv Dutta, learned
senior counsel assisted by Mr. Sanjeev Kumar Singh, learned counsel.
29. The appeals are accordingly allowed in the above terms. There
shall be no order as to costs. Pending interlocutory applications, if any,
shall stand disposed of. B

Kalpana K. Tripathy Appeals allowed.

C

D

E

F

G

H