Writ Petition No. 2457 of 2012 and Writ Petition (L) No. 585 of 2013. Case: 1. Air India Aircraft Engineers' Association, 2. Indian Aircraft Technicians' Association Vs 1. Air India Ltd., Air India Engineering Services Limited, The Regional Labour Commissioner (Central) and The Union of India, [Alongwith Writ Petition No. 391 of 2013, Writ Petition (L) Nos. 2896 of 2012], 2. National Aviation Company of India Ltd., Air India Engineering Services Limited, The Regional Labour Commissioner (Central), Union of India. High Court of Bombay (India)
| Case Number | Writ Petition No. 2457 of 2012 and Writ Petition (L) No. 585 of 2013 |
| Counsel | For Appellant: Mr. Aspi Chinoy, Sr. Advocate, with Sanjay Singhvi and Ms. Jane Cox, Mr. Rajmohan A. Amonkar, Mr. Manmohan A. Amonkar, Mr. Bennet D'Costa, Ms. Richa Srivastava i/b PKA Advocates and Mr. V. P. Vaidya, Advs. And For Respondents: Mr. Kevic Setalwad, Sr. Advocate with Mr. Girish Kulkarni & Ms. Kavita Anchan i/b M.V. Kini & Co., Mr. ... |
| Judges | A. M. Khanwilkar and A. P. Bhangale, JJ. |
| Issue | Constitution of India - Articles 14, 16, 19(1)(g), 21, 311; Industrial Disputes Act, 1947 - Sections 2(ka), 25F, 25FF, 25FFF, 25N, 25O, 9A |
| Judgement Date | April 02, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
A. M. Khanwilkar, J.
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Rule made returnable forthwith, by consent. Counsel for the Respondents in the respective petitions waive notice. Taken up for final disposal, by consent. As common questions are involved, these petitions are disposed of by this common Judgment.
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All these petitions were proceeded together as common questions have been raised in these matters.
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Writ Petition No. 2457 of 2012 is filed by the Union representing Licensed/Approved Aircraft Maintenance Engineers employed by Respondent No. 1 throughout India and abroad.
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Writ Petition No. 391 of 2013 is filed by the Union representing Licensed/Approved Aircraft Maintainance technical staff employed by Respondent No. 1 throughout India and abroad.
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Writ Petition (Lodging) No. 2896 of 2012 is filed by the Union claiming to be the largest representative organisation of the Aircraft Engineers employed by Respondent No. 1.
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Lastly, Writ Petition (Lodging) No. 585 of 2013 has been filed by the employees of Union claiming to represent all the Aircraft Technicians and Foremen category of the erstwhile Indian Airlines Limited employed by Respondent No. 1 throughout India and abroad.
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Notably, the reliefs claimed in all these petitions are similar. It is prayed that Respondent No. 1 be restrained from hiving-off/demerging the Engineering Department of Respondent No. 2. In the alternative, Respondent No. 1 may be directed to continue the concerned employees, whose cause is espoused by the petitioners-unions employed in the Engineering Department of the erstwhile Air India Limited as the employees of and on the payroll of Respondent No. 1, maintaining all their existing terms and conditions of service and only send them on deputation basis to Respondent No. 2. It is further prayed that direction be issued to set up an expert Committee to study the feasibility including economic viability of the hiving/demerging of the Engineering Department of Respondent No. 1 to Respondent No. 2.
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Briefly stated, Respondent No. 1 has set up a wholly owned subsidiary in the name of Air India Engineering Services Limited (AIESL), the Respondent No. 2, and planned hiving-off/demerging the entire Engineering Department of Respondent No. 1 to Respondent No. 2. After becoming aware about this development, the employees' unions made representations to the Management to desist from proceeding with the said proposal of hiving-off/demerging the entire Engineering Department of Respondent No. 1 and until detailed feasibility study by an independent concern was undertaken in that behalf. Having noticed that inspite of doubts expressed in some quarters about the viability of demerging of the entire Engineering Department of Respondent No. 1 to Respondent No. 2 and, more particularly, as the employees employed by Respondent No. 1 in the said Department apprehended retrenchment either by Respondent No. 1 or after the demerger by Respondent No. 2 on some pretext and, further, because there was strong possibility of Respondent No. 2 not able to sustain the business competition and eventually likely to be closed down, decided to move the Regional Labour Commissioner (Central), Respondent No. 3, to intervene in the industrial dispute and admit the demand into conciliation under the provisions of the Industrial Disputes Act, 1947 (for short, 'the Act'). The apprehension of the employees of Respondent No. 1 employed in the said Department became stronger as their salaries were also not paid for the month of July, August, September, 2012 nor the last six months PLI (Productivity Linked Incentive), amongst other allowances, and benefits were offered to them. It is stated that the conciliation proceeding in that regard are in progress. It is not necessary to burden with the details of the issues involved in those proceedings for considering the nature of reliefs claimed in the present petitions.
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Suffice it to observe that the petitioners have rushed to this Court by way of present petitions after being convinced that Respondent No. 1 was going ahead with the hiving-off of the Engineering Department and that the services of the employees employed in the Engineering Department would be transferred to Respondent No. 2 unlike some of the employees of Respondent No. 1 were to be sent to Respondent No. 2 only on deputation. As the petitioners were more than convinced that Respondent No. 1 was not even willing to negotiate on these matters and instead, the notices were received by the employees of Respondent No. 1 employee in the Engineering Department proposing to transfer them to Respondent No. 2, the petitioners have filed the present petitions for the reliefs as aforesaid.
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Respondent No. 1 have contested these petitions. At the outset, they have raised preliminary objections. Firstly, that the petitioners have alternative and efficacious remedy for resolution of the industrial dispute as provided by law. Secondly, the petitions suffer from laches and unexplained delay. According to the Respondents, these petitions are an attempt to slow down the execution of the policy decision taken at the highest level by the Government of India, if not stifle the same. In other words, these petitions are motivated and an attempt to arm twist the Air India and the Union of India for which the same should not be entertained. The Respondents, in the affidavit sworn by the General Manager of Respondent No. 1, have asserted that Air India, for some time and even today, continues to go through serious financial crisis which seriously threatens the very existence of Air India. Air India has incurred losses which run into tens of thousands of crores. Further, the Air India being a national carrier, can be bailed out only by the Government of India. The Government of India has been infusing funds into Air India from time to time which has enabled it to remain afloat. The current losses of Air India are approximately Rs. 30,000/- crores as on 30.9.2012. Unless the Government of India is permitted to bail out Air India, as is proposed in the Turn Around Plan (for short, 'TAP'), there may be no other option but to wind up Air India, which may result in huge financial and other losses not only to Air India but also to the country and would also result in job loss to approximately 25000 employees of Air India. In the affidavit, it is further stated that these petitions pertain to a policy decision of the Government of India with which the Courts should be loathe to interfere. Further, no case has been made out to interfere with the policy decision of the Government of India. It is then stated that the TAP and the policy decision of the Government of India has attained Cabinet Approval after a detailed technical and financial analysis by experts in the field including SBI Capital Markets Ltd. (SBI Caps) and Deloitte. Judicial Review of that policy decision is impermissible in law. It is further stated that the employees, who are members of the petitioner unions have no right, muchless vested right, in the Maintainance, Repair and Overhaul (MRO) business and judicial review of the transfer of that business to Respondent No. 2 is not permissible in law. That action is based on policy decision on economic matters taken at the highest level by the Government of India and the Court must be circumspect in conducting any enquiry or investigation to question the judgment and wisdom of the experts, who were engaged in the process of formulation of the policy decision. The petitioners have raised issues which cannot be examined by this Court in writ petitions. Further, it is a settled position in law that even if some persons are at the disadvantage and suffer losses on account of stated Government policy, that by itself is not sufficient for the Court to interfere in the matter unless it is shown to be arbitrary, capricious and malafide. It is asserted that the policy decision has been taken not only by the Air India but at the highest level by the Government of India because the survival of Air India is at stake. Further, the rights, if any, of the petitioners and its members can only be subject to supervening public interest of the TAP for Air India succeeding.
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The process followed in formulation of the policy has been spelt out in this reply affidavit. It commenced with the decision taken in the Cabinet meeting held on 13.8.2009 whereby it was decided to constitute a Group of Ministers (GOM) to consider the financial situation of Airlines and Airport Authority of India (AAI) and to suggest possible remedial measures. The GOM started monitoring the financial and operational performance of Air India w.e.f. 21.10.2009 and in the process, held 8 meetings. The GOM in its meeting held on 22.6.2011 decided to constitute a Committee of Group of officers (GoO) under the Finance Ministry to examine the TAP and FRP submitted by Air India in consultation with SBI Caps and vetted by M/s. Deloitte, an independent consultant. The GOM accepted the recommendations of GoO presented in the meeting held on 28.10.2011 and directed that the same may be placed before the Cabinet for its consideration. The Cabinet had then approved the TAP of Air India at its meeting held on 12.4.2012. The Respondents have placed on record the relevant minutes of the Cabinet as well as the Committees, proposal and the reports/recommendations of the experts on record in support of its stand that the entire process was the outcome of due deliberations and extensive consultation. It is only after being fully satisfied that the demerger of Engineering Department of Air India was the only way forward, the policy decision in that behalf has been taken.
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It is stated in the reply affidavit that the merger of erstwhile Air India and Indian Airlines in the year 2007 had created Strategic Business Units (SBUs) in the areas of MRO and Ground Handling (GH) activities. It was thus, envisaged to improve the operations of these SBUs and...
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