Madras High Court
Dani Aviation Services Pvt. Ltd vs Union Of India on 3 February, 2010
Equivalent citations: AIR 2010 MADRAS 87, 2010 A I H C (NOC) 823 (MAD), (2010) 2 MAD LJ 217, (2010) WRITLR 203
Author: K.K. Sasidharan
Bench: K.K. Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 03.02.2010 Coram The Honourable Mr. H.L.GOKHALE, CHIEF JUSTICE and The Honourable Mr. Justice K.K. SASIDHARAN W.A.No. 145 of 2010 and M.P.No.1 of 2010 Dani Aviation Services Pvt. Ltd., A company registered under the Companies Act, 1956 having its Registered Office at S-16, Siddharth, 15, Main Road, Thiru.Vi.Ka.Industrial Estate, Guindy, Chennai 32 Rep. by its Director T.S.Chandrasekar . Appellant vs. 1. Union of India, Ministry of Civil Aviation, Represented by its Regional Deputy Commissioner of Security, Southern Region, Chennai Airport, Chennai 600 027. 2. The Airports Authority of India, Chennai Airport, Represented by its Director, Chennai Airport, Chennai 600 027. . Respondents - - - - - Prayer : Appeal filed under Clause 15 of the Letters Patent against the order passed in W.P.No. 622 of 2010 dated 01.02.2010 on the file of this Court. - - - - - For Appellant :::: Mr. G. Rajagopalan, Senior Counsel for Mr. S. Vanchinathan For Respondent 1 :::: Mr. J. Ravindran, Asst.Solicitor General of India For Respondent 2 :::: Mr. A.J. Javad - - - - - J U D G M E N T
THE HONBLE CHIEF JUSTICE Heard Mr.G.Rajagopalan, learned senior counsel with Mr.S.Vanchinathan, learned counsel in support of this appeal. Mr.J.Ravindran, learned Assistant Solicitor General of India appears for the first respondent and Mr.A.J.Javad, learned counsel appears for the second respondent.
2. The short facts leading to this appeal are this wise:-
(a) The appellant is a company registered under the Indian Companies Act, 1956, and is engaged in ground handling services for the aircrafts. One of the directors of this company namely, Mr.Sivakumar Sinnarajah, a person of Sri Lankan origin, and who is a citizen of U.S.A, is holding 66.18% FDI in the appellant-company. The Srilankan Airlines Limited entered into an agreement with the appellant for supply of manpower on 11th October, 2007 for a period of two years for their operations in the Chennai Airport, and the said contract was extended up to October, 2012.
(b) For conducting the ground handling services at the airport, the employees of the appellant are required to have passes issued by the second respondent-Airport Authority of India. As far as the security at the airport is concerned, the second respondent is guided by the advice of the first respondent Bureau of Civil Aviation Security (BCAS), which is under the control of Ministry of Civil Aviation.
(c) On 10th January, 2010, one of the staff members of the appellant company was prevented by the Central Industrial Security Force (CISF) personnel at the airport stating that the passes issued to the appellant were withdrawn. The appellant, therefore, approached the first respondent, only to get a copy of the letter of the same date signed by the Regional Deputy Commissioner, Chennai addressed to the Airport Director of the Airports Authority of India, Chennai in continuance to the earlier office letter dated 8th January, 2010. The letter stated that since the appellant company had not been cleared for security purpose, the Airport Entry Pass Permit (AEPP) issued to them were taken back with effect from the evening of 11th January, 2010.
(d) The appellant, therefore, filed writ petition bearing W.P.No.622 of 2010 immediately on 11th January, 2010 and prayed for the records relating to this communication dated 10th January, 2010 be called and be quashed, and the first respondent be directed to grant security clearance to the appellant for their ground handling operations at Chennai National and International Airports.
(e) When the petition was filed, the respondents initially agreed not to enforce their communication dated 8th January, 2010 for three days where after, the learned single Judge granted interim injunction not to enforce to the same.
(f) The first respondent filed their counter and sought for vacating the interim order. In the counter, it was stated that the security verification of the company was found to be adverse and therefore the appellant could not be granted clearance. As far as the letter dated 8th January, 2010 mentioned in the communication dated 10th January, 2010 is concerned, it was stated that it was an internal communication and hence, it could not be furnished to the appellant.
(g) The respondents placed before the learned single Judge for his perusal the files pertaining to the letter dated 8th January, 2010 and the prior notings including those of the Cabinet Secretariat dated 12th June, 2009.
3. It was contended on behalf of the appellant before the learned single Judge that the earlier the appellant had been cleared for the security purpose. The record of Mr.Sivakumar Sinnarajah is otherwise very clear and that he has not at all involved in any of the LTTE operations, rather he is one of the victims thereof, and that there was denial of principles of natural justice in the manner in which the decision has been taken. The impugned action will lead to unjustified financial loss to the appellant company and also loss of jobs to its employees numbering around 150.
4. As against this submission of the appellant, it was submitted on behalf of the first respondent that the reasons for the decision arrived at by the first respondent are highly confidential and the decision was taken in the interest of national security, and there was no occasion or question of bringing in principles of compliance with natural justice in this matter. There was a power to withdraw the passes without assigning any reasons in public interest, and in the instant case that power has been exercised. The learned single Judge accepted the submissions of the respondent and dismissed the petition by order dated 01st February, 2010. The learned single Judge, however, extended the time granted to the appellant for the purpose of security clearance till 5.00 p.m on 2nd February, 2010. Being aggrieved by the judgment and order dated 1st February, 2010, this appeal has been filed.
5. The appeal was heard at 2.15 p.m. on 2nd February, 2010. Since Mr.J.Ravindran, wanted a days time to get instructions as to whether the appellant could be afforded post-decisional hearing (as alternatively suggested by Mr.Rajagoplan), the matter was adjourned to be listed today at 2.15 p.m. and the interim relief subsisting till that time was extended till 5.00 p.m. today. Mr. J. Ravindran has tendered a communication dated 3.2.2010 today at 2.15 p.m., rejecting the appellant's request.
6. Mr.G.Rajagopalan, learned senior counsel appearing for the appellant, very fairly submitted that since the appeal was on behalf of a company and a situation had arisen because of the role of a non-citizen, he could not invoke Article 19 of the Constitution of India. According to him, the appellant had a case under Articles 14 & 21 of the Constitution, which rights under the articles were available to any person. He particularly laid emphasis on Article 14 to submit that in the decisions of public bodies, a fairness and compliance of principles of natural justice are required. He submitted that all throughout there has been security clearance granted to the appellant and there was no reason to deny it all of a sudden, and the reasons were also not disclosed. He relied upon the judgment of the Apex Court in the case of Maneka Gandhi vs. Union of India reported in A.I.R. 1978 S.C. 597, particularly paragraph 57, wherein the Court held that any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause would be unfair, unjust and violating Article 21 of the Constitution. It is material to note that the post-decisional hearing was also suggested as a remedy. He also relied upon paragraph 54 and 55 of the judgment of the Apex Court in the case of Mohinder Singh Gill vs. Chief Election Commissioner reported in A.I.R. 1978 S.C. 851, which states that the public authorities have to explain the exclusion of principles of natural justice, but paragraph 54 itself states that dire social necessity can be an exception.
7. As against this submission of the appellant, Mr.J.Ravindran, relied upon the provisions of Rule 92 of the Aircraft Rules,1937, which is framted under the Aircraft Act, 1934, and which reads as follows: -
92. Ground Handling Services. The licensee shall, while providing ground handling service by itself, ensure a competitive environment by allowing the airline operator at the airport to engage, without any restriction, any of the ground handling service provider, who are permitted by the Central Government to provide such services.
Provided that such ground-handling service provider shall be subject to the security clearance of the Central Government.
8. He also relied upon the Regulations framed by the Airport Authority of India under Section 42 of the Airports Authority of India Act, 1994, known as Airports Authority of India (General Management, Entry for Ground Handling Services) Regulations, 2007. Regulation 6 of this Regulations lays down that the Bureau of Civil Aviation Security may impose such restrictions as may be necessary in this behalf on grounds of security. Regulation 8 contains the other conditions, which reads as follows: -
Other conditions All concerned agencies besides complying with the provisions of these regulations shall also be required to follow the provisions contained in the Aircraft Act, 1934 and rules made thereunder and directions, orders and circulars issued from time to time.
9. He, then, referred to Circular No.4 of 2007 dated 19th February, 2007 issued by the Bureau of Civil Aviation Security containing instructions on deployment of ground handling agencies at the airport. Instruction No.(i) of this Circular lays down that no ground handling agencies shall be allowed to work at the airport unless prior security clearance is obtained from the BCAS. Instruction No. (v), which is material for our purpose, reads as follows :
Background check in respect of ground handling agencies working in the airports is necessary. Therefore, AAI/Aircraft Operator shall send the details of the each existing ground handling company, already engaged by them for ground handling functions along with the company profile and address, telephone numbers etc of Board of Directors and management so that the necessary action could be taken by the BCAS to get the antecedents verified of such agencies. In case any company comes to adverse notice, the same shall not be allowed to work at the airport and shall be liable to be removed from the airport.
10. Mr.Ravindran, therefore, submitted that inasmuch as there were serious objection from the BCAS, permission granted to the appellant had been withdrawn and this Court should not sit in judgment over the decision, which is in the interest of national security.
11. We have considered the submissions of both the learned counsel. We have perused the files which were shown to the learned single Judge. There is no difficulty in accepting the submission of Mr.Rajagopalan that normally all public authorities have to act in consonance with the principles of natural justice and opportunity to explain ones position ought to be afforded to a person. The principles of natural justice are however not a strait jacket formula. In the instant case, Rule 92 of the Aircraft Rules itself makes it clear that the ground handling services provider shall be subject to the security clearance of the Central Government. Regulation-6, referred to above, make it clear that BCAS has the power to impose such restrictions as may be necessary on the ground of security. The regulation Other conditions lays down that the Circulars issued under the Aircraft Act, 1934 would be applicable. These regulations are made under Section 42 of the Airports Authority of India Act, 1994 and the circular dated 19th February, 2007 requires prior clearance to the ground handling agencies and in the event, any company comes to adverse notice, the same is not allowed to work at the airport and shall be liable to be removed.
12. The aforesaid provisions are made in the interest of the general public and even if Article 19(1)(g) which gives the right to the citizens to practice any profession, trade or business was to be considered, the present restrictions would be reasonable restrictions under sub-Article 19(1)(g) in the interest of the general public. It is another matter that Article 19 does not apply as fairly conceded by Mr.Rajagopalan. In our view, Article 21 also would not get attracted, since this is not a case concerned with the protection of life or personal liberty and in any case, the remedy of post-decisional hearing is always available to the petitioner. At the highest, Article 14 would be an article to apply as canvassed by Mr.Rajagopalan. But, as stated above, the aforesaid provisions of law make it clear that it is the security at the airport, which is more important. The decision taken by the respondents is stated to be from the point of view of national security. In such matters, the prime position of the State to take necessary measures has to be accepted. The High Court cannot sit in a judgment over the decision of the respondent, which are taken from the point of view of security. Mr.Ravindran has rightly referred and relied upon a Division Bench judgment of the Bombay High Court dated 10th June 2008 in W.P.No. (LOD) No.656 of 2009 in the case of Akbar Travel of India (Pvt) Limited vs. Union of India and others. In that matter also, in a similar situation, Bombay High Court has held that the Court cannot indulge in guess work and hold that the inputs available to the Government do not endanger the security of the airport. These are matters which are better left to the authorities in charge of security of the vital installations and they are in charge of laying down standards and norms for protecting and safeguarding them.
13. In the circumstances, we are not in a position to interfere with the decision arrived at by the respondents nor that of the learned single Judge. At the same time, we are of the view that the submission of Mr.Rajagopalan for post-decisional hearing, based on the judgment in Maneka Gandhis case, requires consideration. Hence, although the permits withdrawn from the appellant will not be restored to them, it will be open to the appellant to make a representation to the respondents, which they propose to make at the earliest, and it will be for the respondents to take a decision on the merits of the representation. We make it absolutely clear that the decision will rest entirely with the respondents. The respondents will decide the appellant's representation within two weeks from the receipt thereof, after affording an opportunity to them.
14. For the reasons stated above, the appeal is dismissed. There will be no order as to costs. Consequently, miscellaneous petition is closed.
Index:Yes (H.L.G., C.J.) (K.K.S., J)
Internet:Yes 03.02.2010
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Office to note : Issue a copy of this order today.
Copy to:
1. Union of India,
Ministry of Civil Aviation,
Represented by its Regional Deputy
Commissioner of Security,
Southern Region, Chennai Airport,
Chennai 600 027.
2. The Airports Authority of India,
Chennai Airport,
Represented by its Director, Chennai Airport,
Chennai 600 027.
The Honble Chief Justice
and
K.K.Sasidharan, J
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W.A.No. 145 of 2010
03.02.2010