Delhi High Court - Orders
Air India Limited vs All India Aircraft Engineers ... on 30 November, 2023
Author: Yogesh Khanna
Bench: Yogesh Khanna, Tushar Rao Gedela
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 125/2023, CM APPL. 59959/2023
AIR INDIA LIMITED ..... Appellant
Through: Mr.Harish N Salve, Mr.Arvind
Nigam, Sr Advocates with
Ms.Anuradha Dutt, Mr.Lynn Pereria,
Ms.Priyanka M P, Ms.Shivangi Suid,
Ms.Srishti Prakash and Mr.A. Dass,
Advocates.
versus
ALL INDIA AIRCRAFT ENGINEERS ASSOCIATION & ANR.
..... Respondents
Through: Mr.Jay Savla, Sr Advocate with
Mr.Sameer Kumar, Mr.Shahrukh
Ahmad, Mr.Mandeep Baisala and
Mr.Ritik Dwivedi, Advocates for R1.
Ms.Anjana Gosain, Sr Panel Counsel,
Ms.Priya Mishra, GP and Ms.Nippun
Sharma Ms.Hetika Vadhera,
Advocates for R2.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
HON'BLE MR. JUSTICE TUSHAR RAO GEDELA
ORDER
% 30.11.2023
1. This appeal is filed by the appellant under Section 37(1)(c) of the Arbitration and Conciliation Act against an order and judgment dated 08.11.2023 passed by the learned single Judge in a petition under Section 34 of Arbitration and Conciliation Act being O.M.P.33/2016. It is alleged vide impugned judgment the learned single Judge had erroneously dismissed the petition challenging the award dated 25.05.2016. Two contentions have been raised by the learned senior counsel for the appellant a) the learned arbitrator was to arbitrate only to an extent of admitted dues under the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/12/2023 at 22:03:12 memorandum of settlement and b) the learned arbitrator ought not to have read guidelines in presidential directive dated 21.07.2006 passed under Section 9 of the Air Corporations (Transfer of Undertakings and Repeal) Act, 1994.
2. The learned senior counsel for the appellant has referred to an undertaking dated 09.05.2013 filed before the Hon'ble Supreme Court stating interalia the workman belonging to All India Engineers Association and another, have been transferred to Air India Engineering Services Limited, and for the claim as raised in W.P.2457/2012 on arrears from 01.01.1997 to 31.12.2006 they undertake to clear all admitted dues within a period of eighteen months. Similar undertaking was given by the Ministry of Civil Aviation. The Hon'ble Supreme Court vide order dated 09.05.2013 and 09.05.2014 had appointed Mr.Justice B.N.Agarwal (Retd.) as a learned arbitrator to adjudicate the quantum/head of the arrears w.e.f. 01.01.1997 to 31.12.2006 payable by the respondent no.1 to the concerned employees. The learned senior counsel for the appellant thus submitted the issue before the learned arbitrator was only qua the quantum of amount due as per the Principle Directive dated 21.07.2006.
3. The learned senior counsel for the appellant referred to Section 9 Air Corporations (Transfer of Undertakings and Repeal) Act, 1994 as under:
"9. Power of Central Government to give directions- The Central Government may give to a company directions as to the exercise and performance by that company of its functions, and that company shall be bound to give effect to any such directions."
4. The learned counsel for appellant further contended the presidential directives dated 21.07.2006, required the revisions to be only from the date of such directives and it noted:
"(i) to (iii) xxx xxx This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/12/2023 at 22:03:12
(iv) Revisions would be prospective i.e. from the date of issue of Presidential Directive.
(v) Nominal Fixation will be w.e.f. 01.01.1997 and fitment benefit will be made up out of existing allowances including PLI.
(vi) to (xi) xxx xxx"
5. The appellant, argued the learned arbitrator ought not to have gone beyond the scope of presidential directives.
6. However, it is argued on behalf of respondent the order dated 09.05.2013 did not restrict the arbitrator to look only into the admitted dues but it was an order which authored the learned arbitrator to look into the quantum and heads of arrears w.e.f. 01.01.1997 to 31.12.2006. The learned arbitrator this has arbitrated the same and had not exceeded his jurisdiction.
7. Heard.
8. There is no dispute with regard to the period as well as entitlement of the employees/members of the present Association for payment of arrears of wage revision from 01.01.1997 to 31.12.2006. Before the Hon'ble Supreme Court, the liability with regard to arrears from 01.01.1997 to 31.12.2006 was never disputed. Before the Hon'ble Supreme Court, Air India Ltd and Union of India were parties In fact, both gave express undertaking to the effect that Air India Ltd to clear all the admitted dues, if any in respect of claim raised for arrears from 1.1.1997 to 31.12.2006. The only controversy/ dispute was about the quantum/ heads of arrears for the period 01.01.1997 to 31.12.2006.
9. As the dispute was only regarding quantum/ heads of arrears, initially Mediator came to be appointed. I.A.No.02/2014 was filed by Air India Ltd. in SLP (C) No.16397/2013 for modification of the order. In the said application, it was averred in para 12 the legal remedy available under the Industrial Disputes Act are pending but inspite this, the Hon'ble Supreme Court on 04.05.2014 clarified the words "Mediator" should be read as an This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/12/2023 at 22:03:13 "Arbitrator" and "Mediation" as "Arbitration".
10. Further, Presidential Directive dated 21.07.2006 clearly states that wage revision would be in conformity to DPE guidelines dated 14.01.1999 and 25.06.1999. It is urged the letter dated 21.07.2006 at best even if it is issued under Section 9 of the 1994 Act is merely administrative instructions and has no statutory force. Admittedly, pay revision have been granted to 17000 Air India employees with effect from 01.01.1997 and 14000 employees of ACEU from 01.01.2000.
11. In view of express undertaking given by both Air India Ltd and Union of India, it is alleged by the respondent that the reliance on the Executive Instructions of 21.07.2006 has lost its force. Reliance on memorandum of settlement dated 29.03.2007 to deny the claim for the period 1997-2006 also has no basis. It was urged the settlement itself provided in Clause 9 that same would not amount to any concession or waiver on the part of Indian Airlines employees. Further association immediately on 29.03.2007 has clarified that settlement is subject to their right to pursue for arrears with effect from 01.01.1997. The Appellant-Air India Ltd. in its reply to the statement of claim in paras 4 to 8 have admitted the settlement was signed without prejudice to the claim for payment of arrears with effect from 01.01.1997 to 31.07.2006.
12. The learned single Judge has also in para 45 considered the arguments with regard to MoS and reiterated the association had reserved its right to claim wage arrears for the period 01.01.1997 to 31.07.2006. The only argument raised before the learned arbitrator was revision of wages was notional for the period 01.01.1997 to 21.07.2006 and was prospective.
13. The learned Judge upon examining the documents produced by Air This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/12/2023 at 22:03:13 India has noted all public sector enterprises have been granted wage revision. The learned single Judge rather considered annexure IV viz. the directive to be issued by the administrative Ministries/ Departments of Central Public Sector Enterprises under their administrative control regarding pay revision and other benefits for board level and below level executives as under:
"The scale of pay of the incumbents of the Board level and below Board level executives were last revised by the Government w.e.f. 1.1.92. Government have now decided that the pay revision and other benefits for these executives w.e.f 1.1.97 may be implemented through Presidential Directives.
2. In exercise of the powers conferred by Article ___ of Articles/* of Associations of ____ /* Section ___ of the ___ Act setting up ____ (name of the PSE), the President is pleased to direct the ____ (name of the PSE) that the approved pay scales, .fitment formula, DA, guidelines and ceiling on perquisites for Board level and below Board level executives w.e.f 1.1.97 may be implemented."
14. The learned single Judge held the directive guidelines annexure IV is to be read in consonance with the Presidential Directives dated 21.07.2006 and admittedly based upon such guidelines other two corporations of Air India had paid arrears to their 30,000 other employees and hence petitioner cannot discriminate qua payment of arrears to the respondents herein.
15. Moreso, the learned single Judge held the petitioner did not drew attention to the Presidential Directives when the Court was contemplating to send the disputes to arbitration. If the petitioner was of the view that on account of the Presidential Directives no amount accrued to the employees of respondent no.1, for the period between 01.01.1997 till 31.12.2006 it should have resisted the matter to be sent to arbitration then and there. Further the reason which weighed before the learned single Judge was respondent no.2 had waited for seven years to issue the Presidential This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/12/2023 at 22:03:13 Directives in accordance with the DPE guidelines issued on 14.01.1999 and 21.06.1999 and the respondent no.1 were forced to work on the wages fixed in the year 1992 until 2007 despite increase in inflation. The learned single Judge also found the respondent no.2 probably postponed the Presidential Directives and incorporated the rule of notional fixation as it was unwilling to increase the wages.
16. The impugned order notes that even during the course of arguments the petitioner had not seriously denied that repeated recommendations were made to the Union of India for the payment of wages arrears to these employees.
17. In the light of the above and to further look into the objections raised, as to the import of reading of guidelines annexure IV into Presidential Directives dated 21.07.2006 let the entire arbitral record be filed before the Court and the replies may be filed by the respondents within four weeks from today with an advance copy to the learned counsel for the appellant. Rejoinder, if any, be filed within two weeks thereafter. However, in the meanwhile let the award amount along with upto date interest, if not deposited, be deposited within a period of six weeks failing which the respondents shall be entitled to execute the award.
18. List for hearing on 01.02.2024.
YOGESH KHANNA, J.
TUSHAR RAO GEDELA, J.
NOVEMBER 30, 2023/M/DU This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 02/12/2023 at 22:03:13