Madras High Court
A.Kamalakannan vs The Management Of Air on 17 March, 2017
Author: M.M.Sundresh
Bench: M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 10.03.2017
Date of Verdict: 17.03.2017
Coram
The Hon'ble Mr. Justice M.M.SUNDRESH
W.P.Nos.21685 and 26218 of 2016 and 789 of 2017
and W.M.P.Nos.18531 to 18534 of 2016 and 22475 to 22478 of 2016 and 823 to 826 of 2017
1. A.Kamalakannan
2. C.R.Lakshmipathy
3. A.Selvakumar
4. M.Kanniyappan
5. S.Venugopal
6. S.Loganathan
7. K.J.Dhanasekaran
8. A.Yuvakumar
9. A.P.Srinivasan
10. B.Sreenivasan
11. G.Kumaresan
12. M.Palanivel
13. V.P.MaduraiVeeran
14. T.P.Sasi
15. V.Raghu
16. D.Dickson Raj
17. R.Murugan
18. V.Gnanasekaran
19. M.Balaji
20. W.Isaac Newton
21. T.P.Surendran
22. M.Parasupadmaiah
23. G.Padmanaban
24. A.Panneer
25. S.Dillibabu
26. S.Ravi
27. S.V.Suresh
28. M.Dasthageer
29. D.Muralidharan
30. J.Vasudevan
31. N.Ramanaiah
32. N.Ganesh
33. G.Panneerselvam
34. M.Kumaraswamy
35. K.Manoharan
36. M.Nandhagopal
37. K.Panneerselvam
38. I.Sarangan
39. B.Murali Krishnan
40 B.Harikrishnan
41 M.Selvam
42 V.Ramesh
43 P.Vinayagamoorthy
44 C.P.Srinivasalu
45 V.Sundar
46 A.Alex
47 R.Sathyamoorthy
48 S.Palani
49 D.Jayakumar
50 G.Tamizharasan
51 P.Ramesh
52 B.N.Swaminathan
53 J.Irudayaraj
54 B.Arun
55 K.Narasimhan
56 A.Murugan
57 G.Saravana Kumar
58 M.Elumalai
59 K.Murugan
60 D.Ravi
61 A.Sukumar
62 B.R.Prabhukumar
63 T.Suresh
64 T.Perumal
65 M.Krishnamoorthy
66 G.K.Dhananjayan
67 S.Partheeban
68 V.AlbertJesudas
69 K.A.Stalin
70 T.V.SathyaNarayana Moorthy
71 D.Veeraragavan
72 N.T.Nithyanandan
73 M.Arulkumar
74 R.Kurinjimuthu
75 L.Yesurathnam
76 K.Krishnarao
77 V.C.Murugesan
78 S.Velu
79 M.Muthu
80 P.V.Ravaniah
81 E.John Vivekam
82 K.Ariaveeran
83 N.V.Prasad Rao
84 L.Murugan
85 D.Ramesh
86 D.George
87 K.Kumaran
88 M.N.Narasimhalu .. Petitioners in
W.P.No.21685 of 2016
1 D.Jagadish
2 C.Ravindran
3 G.Jayaseelan
4 K.Dinakaran
5 Loganathan.T.
6 S.Soundararajan
7 D.Ramesh
8 M.J.Vinod
9 M.S.Suresh
10 R.James Anthony Charles
11 R.Mohammed Jagurudeen
12 M.Kannan
13 M.Murugesan
14 P.Ravichandran
15 A.Jayakumar
16 S.Archaraj Murugan
17 L.Venkatachalam
18 M.Ramesh Kumar
19 K.V.Jayachandran
20 M.Raveendran
21 K.Rajeshkanna
22 E.Paranthaman
23 N.Samuel Nelson Dhanraj
24 S.Kannan
25 K.Tanveer Ahmed
26 J.Mahendran
27 V.Sivabalan
28 P.Umapathi
29 K.Ravi
30 P.Jayakumar
31 K.Sakthiraj
32 C.B.V.Gopinath
33 V.Chandrasekaran
34 M.Munuswamy
35 D.Vijayakumar
36 K.Durai Raj
37 K.V.Ezhilmaran
38 J.Pandian
39 R.Aruldas
40 Mohamed Rafi
41 M.Vadivelu
42 M.Vigneswaran
43 K.Samuel
44 E.Chandran Kumar
45 V.Pushparaj .. Petitioners in
W.P.No.26218 of 2016
1. S.Paulraj
2. N.Radhakrishnan
3. J.Babu
4. R.Benjamin
5. V.Boomilingam
6. S.Raman .. Petitioners in
W.P.No.789 of 2017
Vs
1 The Management Of Air
India Ltd Air India Lines House No.113
Guruthwara Raka Bunch Road New Delhi
2 The General Manager
(Personnel) Southern Region Air India
Limited Air India Unity Complex GST Road
Pallavaram Cantonment Chennai-600 043
3 Air India Air Transport
Services Limited A Wholly Owned Subsidiary
of Air India Limited Air India Unity
Complex Pallavaram Cantonment
Chennai-43. .. Respondents in
all the W.Ps
Petitions filed under Article 226 of The Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records of the respondents in connection with the scheme bearing Nos.MAA/SLP/804/171, MAA/SLP/804/207 and MAA/SLP/804/207 dated 04.04.2014 and quash the same and direct the respondents herein to frame a scheme for regularization to ensure a regular employment for the petitioners as permanent workers of the respondent Corporation in the jobs to which they were originally appointed.
For Petitioner .. Mr.V.Prakash, Sr. Counsel
for Mr.K.Sudalaikannu
in all the W.Ps
For Respondents .. Mr.N.G.R.Prasad
in all the W.Ps
COMMON ORDER
This is the second round of litigation. Before going into the issues raised the background facts including the legal proceedings and the factual aspects are to be placed on record.
2.LEGAL PROCEEDINGS:
2.1.The petitioners are the casual employees working roughly till the year 1999. Starting from 6 days upto 110 days, they worked with the respondents in their entire career from the year 1985 onwards.
2.2.The casual workers of the respondents raised a dispute in I.D.Nos.22 and 39 of 1991 over their termination and regularisation. An Award was passed to regularise the services of the workmen involved therein. Incidentally, an observation was made to evolve a Scheme for workmen, who were not parties to the Award.
2.3.A challenge was made to the Award before this Court. The matter stood resolved between the respondents and the workers who raised the dispute. Thus, the writ petition was withdrawn. The petitioner filed a writ petition seeking a direction to the respondents to frame a Scheme. The writ petition was dismissed but the writ appeals filed were allowed by the Division Bench with the direction to frame a Scheme. The Special Leave Petition filed by the respondents was also dismissed.
2.4.Thereafter, the impugned Scheme was framed by the respondents on 04.04.2014. Alleging that the Scheme was not in compliance with the order passed by the Division Bench, a contempt petition was filed in Contempt Petition No.643 of 2015 and by order dated 30.06.2015, it was dismissed with liberty to the petitioners to work out the remedy in the manner known to law after having found no wilful disobedience. Thereafter, the present writ petitions have been filed, impugning the Scheme on the ground that it was not in compliance with the order passed by the Division Bench in W.A.No.399 of 2001 etc., batch dated 10.07.2007.
3.BACKGROUND FACTS:
3.1.Earlier, there were two separate entities in the name of Indian Airlines and Air India Limited. They were merged into one on 22.08.2007. A Scheme was also framed pursuant to the order passed in W.P.No.17381 of 1991 involving the erstwhile Indian Airlines Limited. As per the said Scheme, 50% of the future vacancies were to be given to the casuals and the remaining 50% for open recruitment. The impugned present Scheme is similar to the one framed for erstwhile Indian Airlines Limited.
3.2.The decision made on the same line as seen from the impugned Scheme qua the erstwhile Indian Airlines was put into challenge before the Calcutta High Court. The ratio of 50:50 has been upheld by the Apex Court. The pattern followed for the employees at Chennai was also upheld by this Court.
3.3.After the merger of the two concerns, it was found that about 7284 permanent staff were in surplus. Needless to state there was a huge accumulation of loss running over Rs.40,000 crores. The excess man power on 01.12.2015 for the standard force was 4396 and existing force was 11680.
3.4.The Government of India laid down a plan called "Turn Around Plan". The ground operations which were available upto 1999 have been hived off in favour of the subsidiaries. Substantial structural changes have taken place. Earlier, the respondents alone were dealing with the ground operations of foreign Airlines. The change of policy resulted in the monopoly having been lost. The quality of service has been given predominant consideration and thus handling contracts have been given to other agencies. Thus, based upon the Expert Committee's advice, the respondents have hived off the ground handling work in favour of its subsidiary called AIATSL. The existing casual employees have been given contract employment.
SUBMISSIONS:
4.The learned senior counsel appearing for the petitioners would submit that the order of the Division Bench has not been followed in letter and spirit while framing the impugned Scheme. The merger of the two concerns was subsequent and thus cannot have any bearing. The decision to hive off and to create a subsidiary apart from outsourcing cannot be sustained in the eye of law. The petitioners have been suffering for quite number of years. Thus the ratio of 50:50 has to go and the vacancies available at the relevant point of time i.e. 10.07.2007 will have to be taken as a basis and appointment will have to be given.
5.Learned counsel appearing for the respondents would submit that in view of the facts narrated in the counter affidavit, no interference is required. The petitioners do not have vested right. The annexure to the counter affidavit showing the details of the engagement of the petitioners would demonstrate that the petitioners have been working for only few days to 110 days over a span of large number of years. They are not working for more than a decade. The decisions have been taken out of necessity. There is a huge problem being faced by the respondents to deal with the accommodation of permanent employees. The yardstick adopted by the erstwhile Indian Airlines is being adopted now. There is a difference between the employees who are working and the petitioners and hence no interference is required.
6.The chart produced by the respondents indicating the number of days worked by the petitioners is not disputed. 110 days is the maximum number of days worked by one of the petitioners. They have been working spanning over several years starting from 1985 onwards. They are not working from the year 1999. They have been appointed on casual basis. The Scheme has been evolved on par with the one stipulated for the erstwhile Indian Airlines Limited.
7.The Government of India has pumped in enormous amount of money to keep the respondents flying. Even the very recent CAG Report indicates the pitiable condition of the respondents. Suffice it to state that as seen from the recent news paper reports, the respondents are not out of the woods despite the money pumped in by the Central Government.
8.On ground, substantial changes have come. The competition has become more and thus the monopoly has been lost. More foreign fliers have come into the field. The respondents are playing a restricted role now. The demand for quality has become louder. Changes have been brought with the avowed object of bringing a better management and quality of service. Such changes brought forth are not called in question. Even as of now, there is a huge surplus staff.
9.The power of judicial review over a Scheme is very limited. Such a Scheme has to be seen in its own context which involves both public and private interest. The respondents are admittedly a public limited concern. The observations made by the Division Bench has to be seen in the context of framing the Scheme. There is no material to hold that the petitioners would lose their seniority in the employment exchange. In this context, the counter affidavit filed by the Assistant Director of Employment Exchange, in W.P.No.15915 of 1999 etc., batch, as mentioned in the counter affidavit of the respondents, is required to be seen and the same reads as under:
"Placement in daily rated vacancies, the registration index cards of the registrants will not be removed from the Live Registers for a period of two years. Candidates can get their original seniority if they produce the ousting order at the employment exchange within a period of 18 months. Even in cases of placement in temporary/permanent vacancies on regular time scale of pay, the index cards of the registrants will be restored back to its original seniority provided the candidates report back to the employment exchange within 18 months from the date of their ousting from service."
10.The Division Bench did not have the occasion to go into other aspects. There are subsequent developments that have occurred after the decision rendered. It is not as if the respondents have not framed the Scheme. They have taken into consideration the relevant materials while doing so. From the counter affidavit filed by the respondents, it appears that the attempt to put the administration on track appears to be a Herculean task. The decision of the Division Bench cannot be read like a statute. Thus it has to be seen in the context of the facts governing. The Scheme framed for the erstwhile Indian Airlines on the same line as that of the impugned one having been approved by the Apex Court also deserves to be noted. Thus this Court does not find any illegality in the impugned Scheme. The order of the Division Bench does not impinge upon the administrative measures taken by the respondents in consultation with the Government of India as it involves larger issues. The decision to form subsidiaries and hiving off certain works and outsourcing cannot be held to be arbitrary or illegal and in any case, there is no challenge to it.
11.Thus, for the reasons aforesaid, this Court does not find any illegality in the impugned Scheme framed by the respondents, warranting interference. Accordingly, these writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
17.03.2017 Index:Yes/No mmi To 1 The Management Of Air India Ltd Air India Lines House No.113 Guruthwara Raka Bunch Road New Delhi 2 The General Manager (Personnel) Southern Region Air India Limited Air India Unity Complex GST Road Pallavaram Cantonment Chennai-600 043 3 Air India Air Transport Services Limited A Wholly Owned Subsidiary of Air India Limited Air India Unity Complex Pallavaram Cantonment Chennai-43.
M.M.SUNDRESH, J.
mmi Pre-delivery order in W.P.Nos.21685 and 26218 of 2016 and 789 of 2017 17.03.2017 http://www.judis.nic.in