Bombay High Court
Aviation Industry Employees Guild vs Union Of India And 5 Ors on 25 August, 2022
Bench: Dipankar Datta, M. S. Karnik
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 19001 OF 2022
Air Corporation Employees Union,
Western Region Mumbai ...Petitioner
V/s.
Union of India & Ors. ...Respondents
Mr. Mihir Desai, Senior Advocate with Mr. Mihir Joshi for
the petitioner.
Mr. Anil C. Singh, Additional Solicitor General with Mr.
Adity Thakkar, Ms. Savita Ganoo, Mr. D. P. Singh, Ms.
Smita Thakur, Mr. Pranav Thackur and Mr. Sharad
Banshal, for respondent no.1 - Union of India.
Ms. Shilpa Kapil with Mr. Chidanand Kapil for respondent
no.2 (AAI).
Mr. Janak Dwarkadas, Senior Advocate with Mr. Vikram
Nankani, Senior Advocate, Ms. Namrata Vinod and Ms.
Shoma Maitra and Ms. Naziya Khan i/by. Wadia Ghandy
and Co. for respondent no.3.
Mr. Milind More, Additional Government Pleader with Mr.
Manish Upadhye, AGP for respondent no.4 -State.
Mr. Kevic Setalvad, Senior Advocate with Mr. Vijay
Purohit, Ms. Nikita Bangera, Mr. Faizan Mithaiwala, Mr.
Samkit Jain, Ms. Sneha Prabhu and Mr. Jehan Lalkaka
i/by. P & A Law Offices for respondent no.5.
Mr. M. P. Rao, Sr. Counsel with Mr. S.D. Shetty, Mr.
Rakesh Singh, Ms. Gautam Bala, Ms. Shristi Shetty and
Mr. Sumeet Palsuledesai i/by. M.V. Kini & Co. for
respondent nos. 6, 7 and 8.
AND
WRIT PETITION (L) NO. 19171 OF 2022
1
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Aviation Industry Employees Guild ...Petitioner
V/s.
Union of India & Ors. ...Respondents
Mr. Ashok D. Shetty a/w. Ms. Rita K. Joshi and Mr.
Swapnil P. Kamble for petitioner.
Mr. Anil C. Singh, ASG with Mr. Adity Thakkar, Ms. Savita
Ganoo, Mr. D. P. Singh, Ms. Smita Thakur, Mr. Pranav
Thackur and Mr. Sharad Banshal, for respondent no.1 -
Union of India.
Mr. M. P. Rao, Sr. Counsel with Mr. S.D. Shetty, Mr.
Rakesh Singh, Ms. Gautam Bala, Ms. Shristi Shetty and
Mr. Sumeet Palsuledesai i/by. M.V. Kini & Co. for
respondent nos. 2, 3 and 5.
Mr. Kevic Setalvad, Senior Advocate with Mr. Vijay
Purohit, Ms. Nikita Bangera, Mr. Faizan Mithaiwala, Mr.
Samkit Jain, Ms. Sneha Prabhu and Mr. Jehan Lalkaka
i/by. P & A Law Offices for respondent no. 4.
Mr. Milind More, Additional Government Pleader with Mr.
Manish Upadhye, AGP for respondent no.6 -State.
AND
WRIT PETITION (L) NO. 20338 OF 2022
WITH
INTERIM APPLICATION (L) NO. 22361 OF 2022
All India Services Engineers
Association ...Petitioner
V/s.
Union of India & Ors. ...Respondents
Mr. Sanjay Singhvi, Senior Advocate with Ms. Rohini
Thyagarajan for the petitioner.
Mr. Anil C. Singh, ASG with Mr. Adity Thakkar, Ms. Savita
Ganoo, Mr. D. P. Singh, Ms. Smita Thakur, Mr. Pranav
Thackur and Mr. Sharad Banshal, for respondent no.1 -
Union of India.
2
1-Judgment-oswpl19001-2022 & connected -F
Mr. M. P. Rao, Sr. Counsel with Mr. S.D. Shetty, Mr.
Rakesh Singh, Ms. Gautam Bala, Ms. Shristi Shetty and
Mr. Sumeet Palsuledesai i/by. M.V. Kini & Co. for
respondent nos. 2 and 3.
Mr. Kevic Setalvad, Senior Advocate with Mr. Vijay
Purohit, Ms. Nikita Bangera, Mr. Faizan Mithaiwala, Mr.
Samkit Jain, Ms. Sneha Prabhu and Mr. Jehan Lalkaka
i/by. P & A Law Offices for respondent no. 4.
Mr. Milind More, Additional Government Pleader with Mr.
Manish Upadhye, AGP for respondent no.5 -State.
Mr. Janak Dwarkadas, Senior Advocate with Mr. Vikram
Nankani, Senior Advocate, Mr. Mehul Talera, Ms. Shoma
Maitra and Ms. Naziya Khan i/by. Wadia Ghandy and Co.
for respondent no.6.
Mr. K.T. Thomas with Mr. Sourav Chhetri, Mr. Mayank
Mishra & Ms. Tahira Siddique, for Intervenor in
IA(L)/22361/2022 in WPL/20338/2022.
CORAM: DIPANKAR DATTA, CJ &
M. S. KARNIK, J.
RESERVED ON : AUGUST 18, 2022 PRONOUNCED ON: AUGUST 25, 2022 JUDGMENT [per the Chief Justice]
1. The 3 (three) writ petitions under consideration arise out of the same set of facts and involve common questions of law; hence, the same were heard analogously. We propose to dispose of these writ petitions by this common judgment and order.
2. Writ Petition (L) No. 19001 of 2022 is at the instance of Air Corporation Employees Union (hereafter "Union", for short). It was instituted on 16th June, 2022. The prayers in such writ petition are for: (a) setting aside, by issuing a writ of certiorari or an appropriate writ, the letter dated 7th 3 1-Judgment-oswpl19001-2022 & connected -F October, 2021 issued to the employees of Air India Ltd. (respondent no.5), AI Engineering Services Ltd. (respondent no.6) and AI Airport Services Ltd. (respondent no.7); (b) setting aside, by issuing a writ of certiorari or an appropriate writ, the impugned letters dated 26th/27th May, 2022 issued to the employees of the aforesaid respondents 5, 6 and 7; and
(c) commanding the respondents (respondent nos. 1 to 8), by a writ of mandamus or an appropriate order/direction, to implement the Air India Housing Allotment Rules, 2017 in its true spirit and to allow the employees of the said respondents 5 to 7 to occupy their respective premises till their retirement or cessation of services.
3. Writ Petition (L) No. 19171 of 2022 has been instituted on 18th June, 2022 by Aviation Industry Employees Guild (hereafter "Guild", for short). The substantive relief claimed by the Guild through such writ petition is that the Court by issuing a writ of certiorari or mandamus or any other appropriate writ, order or direction, may quash and set aside the impugned letters dated 5th October, 2021 and 26th May, 2022 as well as quash and set aside various other communications individually addressed to the employees from time to time asking them to give undertaking for vacating the allotted accommodation where they are residing as well as to restrain the respondents (i.e., 1 to 6) from evicting the employees from such accommodation till termination of service whether by way of retirement or superannuation or resignation or otherwise; and also to allow the employees who have been allotted accommodation as per the Air India Housing Allotment Rules, 2017 to continue to stay therein till 4 1-Judgment-oswpl19001-2022 & connected -F termination of their services as aforesaid.
4. All India Services Engineers Association (hereafter "Association", for short) has instituted Writ Petition (L) No. 20338 of 2022 on 27th June, 2022, wherein it has prayed inter alia the following relief: -
(a) A writ of mandamus directing the AI Engineering Services Ltd. (respondent no. 2) to withdraw the notices dated 7th/8th October, 2021 prepared by Air India Ltd.
(respondent no.4) as well as notices dated 26 th May, 2022 issued by the respondent no.2 individually to the members of the Association;
(b) issue a mandamus directing the Union of India (respondent no.1) to withdraw its directive dated 29 th September, 2021; and
(c) issue a mandamus directing the respondents 1 and 2, as aforesaid and AI Assets Holding Ltd. (respondent no.3) to permit the members of the Association to continue to reside in the premises allotted to them in terms of the Housing Allotment Rules, 2017 till such time a failure report is submitted in the conciliation proceedings [No. B-7 (12)/2021-S.I.] and the dispute is referred to and adjudicated by the Central Government Industrial Tribunal.
5. Without even referring to the facts pleaded in the individual writ petitions, it would be clear from the tenor of the prayer clauses noted above that the members of the petitioning Union, the Guild and the Association (hereafter "petitioners", when referred to collectively) have invoked the 5 1-Judgment-oswpl19001-2022 & connected -F writ jurisdiction of this Court under Article 226 of the Constitution of India faced with the threat of eviction from their residences. These happen to be accommodation allotted to them for residential purpose under the Air India Housing Allotment Rules, 2017 (hereafter "the Allotment Rules", for short).
6. The interim prayers in all the three writ petitions are common, viz. (a) the impugned letters/notices be not enforced; and (b) the members of the petitioners be not forced to vacate their respective residences till such time the writ petitions are disposed of.
7. Before we proceed further, it would be appropriate to briefly note the undisputed basic facts and circumstances that led to institution of these writ petitions.
8. Air India Ltd., which not too long ago was India's national carrier, was suffering huge losses and became debt ridden. The Government of India had approved a plan for privatization of Air India Ltd. The process for disinvestment of the Government's share in Air India Ltd. and its subsidiary companies culminated in an in-principle approval for strategic disinvestment of Air India Ltd. by sale of cent per cent equity capital. The Cabinet Committee on Economic Affairs constituted a body named Air India Specific Alternative Mechanism (hereafter "AISAM", for short) to drive to fruition the disinvestment process of Air India Ltd. The Union Home Minister headed the AISAM. Upon constitution of a bilateral committee which, inter alia, included representatives of the employees, the views of all were heard. After thorough 6 1-Judgment-oswpl19001-2022 & connected -F discussion and deliberation, a decision was finally taken with respect to several facilities including housing. AISAM held a meeting on 9th August, 2021. It was decided in such meeting that all employees may continue to stay at the residential colonies of Air India Ltd. "post disinvestment for a period of six months or till the property is monetized, which is earlier". Accordingly, a letter dated 29th September, 2021 was issued by the Ministry of Civil Aviation to Air India Ltd. whereby it was intimated of the said decision taken by the AISAM in the meeting held on 9th August, 2021 and that the serving and retired employees would have to vacate the premises allotted to them as set out in the said letter. On 5th October, 2021, the General Manager (IR) addressed a further letter for the same purpose to the General Manager (Pers). The employees were then issued letters dated 7th/8th October, 2021 informing them of the letter dated 29th September, 2021 and the AISAM's decision taken during the meeting held on 9th August, 2021 and also informing them that they would have to vacate within 6 (six) months of the disinvestment. Thereafter, on 13 th October, 2021, the Joint Action Committee of the Air India Unions filed a 'Strike Notice' with the Labour Commissioner. It was, inter alia, contended in the annexure to such notice that the staff normally live in the colonies with their families until retirement and displacing them would amount to withdrawing a privilege which, in view of Schedule IV appended to the Industrial Disputes Act, 1947 (hereafter "the ID Act", for short), was a service condition which could not have been changed without following the procedure prescribed by law. On 27th January, 2022, Air India Ltd. was privatized by 7 1-Judgment-oswpl19001-2022 & connected -F transfer of 100% shares to Talace Pvt. Ltd. Hence, the six- month period commenced from this date. On 26th May, 2022, the employees were once again called upon to vacate the premises allotted to them by 26th July, 2022. Out of 11,179 employees of Air India Ltd. as on 15th June, 2022, only 1858 were staying in the residential accommodation. Of these 1858 individuals, 70% had voluntarily executed undertakings to vacate and around 300 occupants already vacated their allotted accommodation. In view of the notice of strike, as aforesaid, by operation of section 20 of the ID Act, conciliation proceedings were deemed to have commenced. There were several meetings before the Conciliation Officer, which ultimately proved abortive. Although the Conciliation Officer vide minutes of meeting dated 6th June 2022 recorded that the proceedings ended in failure, he did not immediately submit his failure report to the Government of India.
9. The petitioning Union, in the meanwhile, had instituted a writ petition before the High Court of Judicature at Madras, being Writ Petition No. 25568 of 2021 titled Air Corporation Employees Union Vs. Union of India & Ors. In such writ petition, it had prayed for a writ of mandamus forbearing the Union of India, Air India Ltd. and Talace Pvt. Ltd. (respondents 1, 2 and 4, respectively) from proceeding further with the process of disinvestment of the stake of the Government of India in Air India Ltd. without taking appropriate measures to protect the terms and conditions of service and rights of the employees of Air India Ltd. represented by the Union and covered by the recommendations contained in the report dated 10th February, 2020 of the bilateral committee 8 1-Judgment-oswpl19001-2022 & connected -F constituted under Notification bearing Ref. No. HPD02/130 issued by the Director (Personnel), Air India post disinvestment in consultation with the Union and without addressing the issues raised by the Union in its representation dated 9th August, 2021 to the Director (Personnel), Air India Ltd. and settling of the pending dues of the members of the Union.
10. The said writ petition was considered by a learned Judge. Upon hearing the parties, His Lordship was of the view that the following issues emerged for an incisive examination:
"(i) Whether the employees are entitled to notice or opportunity or a pre-decisional hearing in the face of the decision being taken by the Government towards advancing larger public interest as a consequence of its economic policy initiative or not?
(ii) Whether Section 9A of the I.D. Act, 1957 can be pressed into service in the matter of change of management through disinvestment process or not as in the present case?
(iii) Whether in the facts and circumstances of the case, it can be held that due opportunity had been afforded to the employees before the SPA dated 25.10.2021 was signed and implemented or not?
(iv) Whether conditions of service of the employees, in particular, with reference to their claim towards medical benefit scheme, passage rights, colony accommodation can said to be undermined and taken away, ruffling the judicial conscience or not?
As a corollary to the above examination, whether the action of disinvestment with reference to the constricted areas of concern could be held as arbitrary, offending Articles 14 and 21 of the Constitution of India or not?"
11. Upon a contested hearing and for the reasons assigned in a judgment and order dated 11th March, 2022 of His 9 1-Judgment-oswpl19001-2022 & connected -F Lordship, the writ petition stood dismissed. The first and the third issues answered against the Union of India arose out of a direct challenge to the disinvestment of the stake of the Government of India in Air India Ltd. We have been informed that the said judgment and order has not been carried in appeal and, thus, the issue of disinvestment has attained finality. Such disinvestment is also not under challenge in any of these writ petitions. Hence, we refrain from taking a detailed note of the reasons for such answers in the said judgment. Insofar as issues 2 and 4 are concerned, His Lordship dealt with the same in paragraphs 46 to 63 and 67 to 75, respectively, quite elaborately. Although there has been an endeavor on the part of learned counsel for the petitioners to demonstrate errors in the reasoning forming part of the said judgment, we need not be too concerned with the error(s), if any, because it has attained finality inter se the parties to the lis and also because we do not sit in appeal on such judgment.
12. This being the factual setting on the date the writ petitions were instituted, we have been presented with some erudite arguments by the rival parties with reference to texts of various statutes and judicial authorities relevant to the controversy involved.
13. On behalf of the petitioning Union, Guild and Association, arguments were advanced by Mr. Desai, learned senior advocate, Mr. Shetty, learned advocate and Mr. Singhvi, learned senior advocate, respectively.
14. While advancing the lead argument, Mr. Singhvi mainly 10 1-Judgment-oswpl19001-2022 & connected -F contended that House Rent Allowance (hereafter "HRA", for short) was a 'condition of service' of all the employees of the members of the petitioning Association and that in lieu of HRA, 'housing' facility was provided to such members where they have been residing for years together. Such 'housing' facility provided to the employees constitutes a 'condition of service' and the impugned notices calling upon the employees to vacate their respective allotted accommodation without the requisite notice for change of 'condition of service' under section 9A read with Schedule IV of the ID Act is in clear breach of the statutory safeguards provided to such employees. He further contended that 'housing' facility, as provided to the employees is a special right or benefit amounting to a 'privilege' within the meaning of condition no. 8 of the 'Conditions of Service', as enumerated in schedule IV of the ID Act, for change of which notice is to be given in Form E appended to the Industrial Dispute (Central) Rules, 1957. A 'condition of service', according to him, could be changed without the requisite notice if the same were based on an award or a settlement but there is none, which could justify a unilateral change of the nature sought to be made. That apart, he brought to our notice that as soon as the impugned notices were received, a call for strike was given which resulted in automatic commencement of conciliation proceedings before the Conciliation Officer. It is true that conciliation had failed but the failure report was yet to reach the Government of India. In such circumstances, what is glaring is that despite no failure report having reached the Government of India, insistence on the part of the 11 1-Judgment-oswpl19001-2022 & connected -F respondents to initiate coercive/adverse action against the members of the petitioning Association on their failure to vacate the allotted accommodation is clearly in the teeth of the provisions contained in section 33(1) of the ID Act which would debar change of any 'condition of service' till such time the conciliation proceedings stand terminated or change with the permission of the Conciliation Officer.
15. The thrust of Mr. Singhvi's argument has been that there cannot be unilateral change in this fashion and no permission of the conciliation officer having been obtained, such unilateral change of service conditions is impermissible. There being brazen violation of the provisions of the ID Act, he urged that the respondents while acting illegally, in an arbitrary manner and unreasonably, have shown utter disrespect to the procedure prescribed by law and if such violation were not judicially interdicted, the employees would not only be subjected to an uncertain future but also put to untold misery.
16. Mr. Singhvi relied on a host of decisions, viz. those reported in 2006 (3) L.L.N. 916 (Arasu Viraivu Pokkuvarathu Oozhiyar Sangam vs. State Express Transport Corporation, Ltd., & Ors.); (2002) 2 SCC 244 (Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma & Ors.); AIR 1980 SC 2181 (The Life Insurance Corporation of India vs. D. J. Bahadur & Ors.); AIR 1964 SC 1522 (South Indian Bank Ltd. vs. A. R. Chacko); 2007 (2) L.L.N. 422 (Hindustan Lever Ltd. vs. Hindustan Lever Employees' Union & Anr.); (1986) 3 SCC 12 1-Judgment-oswpl19001-2022 & connected -F 156 (Central Inland Water Transport Corporation Ltd. & Anr. vs. Brojo Nath Ganguly & Anr.); AIR 1970 Bom 213 (Haribhau Shinde & Anr. vs. F. H. Lala Industrial Tribunal, Bombay & Anr.); 2017 (6) Mh. L.J. 590 (Tata Global Beverages Ltd. vs. Tata Tea Employees Union & Anr.); (2018) 6 SCC 195 (Pradeep Phosphates Limited vs. State of Orissa & Ors.); (1976) 1 SCC 63 (The Management of Indian Oil Corporation Ltd. vs. Its Workmen); (1990) 2 I.L.R. Punjab and Haryana 233 (Council of Scientific Industrial Research vs. Dilbag Singh Sian); and (1976) 1 SCC 496 (The Premier Automobiles Ltd. vs. Kamlekar Shantaram Wadke of Bombay & Ors.) in support of his contentions.
17. Mr. Shetty, representing the petitioning Guild adopted the submissions of Mr. Singhvi. In addition, he contended that the challenge is not to disinvestment but to the decision taken to compel the members of the petitioning Guild to vacate their residences. According to him, a group of ministers cannot do away with the statutory mandate or without even complying with the principles of natural justice, call upon the employees to act to their detriment. Even slumdwellers are also given alternate accommodation but, here, no such proposal is under consideration. Reliance was placed on the coordinate Bench decision of this Court dated 27th January 2014 in Writ Petition No. 1606 of 2013 (Air India Employees Union v. Air India Ltd. & Anr.) in support of the contention that change of a condition of service without due notice cannot be effected.
18. Appearing on behalf of the petitioning Union, Mr. Desai 13 1-Judgment-oswpl19001-2022 & connected -F too adopted the submissions of Mr. Singhvi. Further, he advanced submissions responding to our query as to why the issues raised in the writ petition by the petitioning Union should not be held to be barred by res judicata. We propose to note the submissions made by Mr. Desai while we deal with the same.
19. On behalf of the respondents, we had the benefit of hearing an array of learned senior counsel.
20. Mr. Anil Singh, learned Additional Solicitor General appearing on behalf of the Union of India contended that the letters of appointment issued to the employees did not assure 'housing' facility; only HRA was provided. While allotting accommodation, not all employees could be provided the same; out of those employees who were found eligible for allotment, only a few were allotted. However, such employees do not have a vested right of accommodation. If an employee was transferred to a place where there is no 'housing' facility, he cannot claim as of right that he should be provided an accommodation.
21. Mr. Singh further contended that the employees were allotted accommodation on the basis of a license agreement which could be terminated by the licensor without assigning any reason. The licensees took possession of their respective allotted accommodation with their eyes open. Such an allotment of 'housing' facility is not a part of the conditions of service of the employees for change of which recourse to the ID Act has to be taken.
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22. Next, Mr. Singh contended that at the highest HRA could be a condition of service but not 'housing'. According to him, section 9A of the ID Act has no application in the present case since housing/grant of license is not a privilege that is being withdrawn. Even otherwise, a privilege as understood in the context of section 9A read with Schedule IV has to be a condition of service. Since 'housing' facility is not attached to condition of service, there is no question of attraction of section 9A of the ID Act. Reliance in this connection has been placed on the decision of the Supreme Court in (1998) 3 SCC 506 [G.M. (Operations), State Bank of India vs. State Bank of India Staff Union].
23. Drawing our attention to the judgment and order of the High Court of Judicature at Madras in Air Corporation Employees Union (supra), it was contended that the Court held that the employees were duly represented in the bilateral committee and, therefore, provisions of section 9A of the ID Act had been observed in spirit.
24. Mr. Singh concluded by submitting that since the members of the petitioners have failed to demonstrate that they have a vested right to be provided an accommodation, which is a condition of service, no case has been set up for interference and the writ petitions, accordingly, deserve to be dismissed.
25. Appearing for the AI Airport Services Ltd., AI Engineering Services Ltd., and Air India Asset Holding Co. Ltd., Mr. Rao, learned senior counsel reiterated that 'housing' is not a condition of service and, therefore, section 9A of the 15 1-Judgment-oswpl19001-2022 & connected -F ID Act would not apply.
26. Without prejudice to the above, Mr. Rao contended that the question of applicability of section 9A of the ID Act was examined in Air Corporation Employees Union (supra) and the Court had ruled against the members of the petitioning Union. Such a decision operates as res judicata.
27. Mr. Rao further submitted that though any notice under section 9A of the ID Act was not necessary, even then adequate notice had been given to the members of the petitioners. Therefore, the complaint is not valid that the members are sought to be displaced without any notice.
28. That apart, Mr. Rao brought to our notice an order dated 21st July 2022 of the Delhi High Court in Writ Petition (C) No. 10599 of 2022 (Santosh Kumar Sahu & Ors. v. Union of India & Ors.) involving similar issues as in the present writ petitions. Such order recorded the assurance of the learned Solicitor General of India that none of the employees would be evicted without recourse to law, meaning thereby the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereafter "1971 Act", for short).
29. It was also submitted that although HRA was a condition of service, some of the employees accepted allotment giving up their claim for HRA knowing fully well that such allotment does not constitute a 'condition of service'; however, once the licensees who are in occupation of their allotted accommodation vacate the same, they would be entitled to claim HRA.
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30. Reference was next made by Mr. Rao to the provisions of the Easements Act, 1882. It was submitted that a license is one which gives a right of permissive user. Having accepted the terms and conditions of the license agreement, which is not a 'condition of service', the members of the petitioners have no right to claim interference by this Court in exercise of its extraordinary writ jurisdiction to protect their (now unauthorized) occupation of the allotted accommodation.
31. Appearing on behalf of Air India Ltd., Mr. Kevic Setalvad, learned senior counsel submitted that the employees are essentially impugning termination of the contract of license to occupy the allotted accommodation. By referring to various decisions rendered by the Delhi High Court, Mr. Setalvad contended that the employees have no right to seek an injunction against eviction. He also reiterated that 'housing' has not been shown to be a condition of service; only HRA could count as 'condition of service'. And, having regard to the fact that decision was taken at the highest level upon taking the employees in confidence, an attempt on the part of the employees to continue to remain in occupation should not be encouraged.
32. We place on record that Mr. Setalvad objected to the maintainability of the writ petitions on the ground that Air India Ltd. is no longer a 'State' within the meaning of Article 12 of the Constitution of India and also that it is not involved in discharge of public duties so as to be amenable to the writ jurisdiction of this Court under Article 226.
33. On behalf of Mumbai International Airport Ltd., we were 17 1-Judgment-oswpl19001-2022 & connected -F addressed by Mr. Dwarkadas, learned senior counsel. Referring to the written note of submission, he contended that the petitioners by instituting these writ petitions were seeking to stall two policies evolved in public interest, viz. (i) disinvestment of Air India Ltd.; and (ii) development of an airport. He referred to property cards and entries therein to contend that Air India Ltd. has no right to retain any right, title and interest over the properties where the housing colonies are situated. According to him, the employees cannot claim a right superior to the right that can be claimed by Air India Ltd. Assuming, but not admitting, that 'housing' facility is a condition of service, it is open to the employees to claim 'housing' facility somewhere else but certainly they do not have a right to claim to reside in a colony which no longer belongs to their employer. Since the writ petitions seek to stake a claim over the rights of third parties with whom the employees have no privity of contract, he contended that there has not been infringement of any legal right for which the writ petitions can be said to be maintainable in law.
34. Placing reliance on certain coordinate Bench decisions of this Court, Mr. Dwarkadas concluded by submitting that the 'justice of the case' does not demand any relief to the members of the petitioners.
35. In his rejoinder, Mr. Singhvi submitted that the license agreements contain terms which are unconscionable and offend public policy. Such unfair contract is not enforceable in law in view of the decision in Brojo Nath Ganguly (supra).
36. It would indeed have been an opportunity well utilized if 18 1-Judgment-oswpl19001-2022 & connected -F we were to navigate through the judicial and textual authorities cited by all the learned counsel who addressed us and to give a decision on the merits of all the points raised in each of these writ petitions; however, one intervening event in course of the present proceedings has required us to take notice and we feel it just and proper, in view of such an event, not to opine on the merits of the rival claims except to the extent hereafter expressed.
37. Having regard to the decision of the High Court of Judicature at Madras in Air Corporation Employees Union (supra), which was not carried in appeal by the petitioning Union, it is obvious that the same has attained finality between the parties to the writ petition before such High Court. Any grievance raised by the petitioning Union in Writ Petition (L) No. 19001 of 2022 seemed to us to be barred by res judicata. We had thus called upon Mr. Desai to advance arguments on this aspect. Mr. Desai contended as follows:
a) The decision in Air Corporation Employees Union (supra) does not amount to res judicata to bar the present proceedings. Res judicata, as laid down in section 11 of the Code of Civil Procedure, 1908 (hereafter "CPC", for short), bars a court from trying a suit or issue, which is directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.19
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b) Thus, res judicata would be an embargo on the petitioning Union if the issue of eviction of its members from staff quarters was squarely decided between the same parties or between parties under whom they or any of them claim (emphasis supplied). In this context, it is apparent from the pleadings before the High Court of Judicature at Madras that the main thrust of arguments on behalf of the petitioning Union and the respondents therein was about the policy decision of the Union of India to divest its shares in Air India Ltd. and the issue of eviction from the staff quarters, though admittedly raised, was peripheral at best.
c) Assuming, without admitting, that the decision in Air Corporation Employees Union (supra) operates as res judicata to bar a petition against Air India Ltd., such bar does not operate against the other respondent companies who were not parties to the proceedings before the High Court of Judicature at Madras and who now happen to be the employer of several members of the petitioning Union; thus, the relief sought against them would not be hit by the doctrine of res judicata.
d) The petitioning Union could not have raised the issue of violation of section 33(1) of the ID Act in Air Corporation Employees Union (supra) as the cause of action for the same arose only when notices were issued to the members of the petitioning Union to vacate their staff quarters in May 2022, during the pendency of conciliation proceedings and, thus, whether the issuance of such notices amounts to violation of section 33(1) or not was not the subject matter of the writ petition decided by the High Court of Judicature at 20 1-Judgment-oswpl19001-2022 & connected -F Madras.
e) In the light of the aforesaid, the decision in Air Corporation Employees Union (supra) does not amount to res judicata or constructive res judicata as the two proceedings are not between the same parties and further the question of violation of section 33(1) of the ID Act was not raised or adjudicated nor could it have been raised before the High Court of Judicature at Madras.
38. It would appear from the above arguments of Mr. Desai that a distinction has been sought to be drawn by referring to section 33(1) of the ID Act. This is a point which we propose to deal with separately after considering the arguments advanced by Mr. Singhvi appearing for the petitioning Association. However, the submissions of Mr. Desai do not in any measure preempt us from holding that the issue raised by Mr. Singhvi (of there being a change of 'conditions of service' quite contrary to the manner laid down by section 9A read with the Schedule IV appended to the ID Act) though would survive for the petitioning Guild and Association to urge, such issue stands closed qua the petitioning Union in view of the specific findings returned in Air Corporation Employees Union (supra). We would also not be justified in holding, in the present facts and circumstances where a decision has been rendered by a High Court (without any involvement of the industrial adjudicator) that the decisions of the Supreme Court laying down the law that principles of res judicata, which are meant and suited for ordinary civil litigation, should not be applied to industrial adjudication, would have application and be sufficient for us to overrule the objection to 21 1-Judgment-oswpl19001-2022 & connected -F the maintainability of the writ petition of the petitioning Union qua the challenge to the failure and/or omission of the respondents to follow section 9A of the ID Act. It is not a case where the industrial dispute has reached the industrial adjudicator for a decision. Incidentally, a reference is yet to see the light of the day. If in proceedings challenging disinvestment the question of housing has been raised by the petitioning Union and a competent court of law has considered such question and decided the same against the petitioning Union on the basis of its interpretation of section 9A of the ID Act, most certainly the same issue of violation of section 9A cannot be urged twice over by instituting proceedings before another High Court. Consciously though, we have refrained from applying Explanation VI to section 11 of the CPC to the proceedings brought forth by the petitioning Guild and Association.
39. We, therefore, see no merit in the point raised by the petitioning Union touching alleged violation of section 9A of the ID Act. However, in view of the observations made by the High Court of Judicature at Madras in paragraph 77 of its decision in Air Corporation Employees Union (supra), the question touching section 33(1) of the ID Act would certainly engage our attention.
40. While Mr. Singhvi was addressing us in his rejoinder and when hearing of the proceedings was on the verge of conclusion, we had adjourned hearing for a couple of days to enable Mr. Rao and Mr. Setalvad to obtain instructions from their respective clients as to whether they are inclined to wait for some time and not take any coercive/adverse action as 22 1-Judgment-oswpl19001-2022 & connected -F proposed in the impugned letters/notices to enable the members of the petitioners to explore their remedy under the ID Act.
41. On the date judgment on these writ petitions was reserved, we were informed by Mr. Rao that eviction of the members of the petitioners is not really imminent inasmuch as recourse would have to be taken to the provisions of the 1971 Act and only after orders being passed in terms of such enactment qua the unauthorized occupants that they would be evicted. In fact, this was a reiteration of the submission made by the learned Solicitor General of India in course of proceedings pending before the Delhi High Court in Santosh Kumar Sahu (supra). Mr. Rao assured the Court that none of the members of the petitioners would be evicted without due process and, therefore, he was under instructions not to commit anything beyond what he had submitted earlier. Mr. Setalvad had also expressed his inability to give any such assurance on behalf of Air India Ltd.
42. However, we heard Mr. Singh submit that the Conciliation Officer has forwarded his failure report dated 17th August, 2022 to the Government of India. Certain documentary evidence to that effect was placed before the Court. On perusal of such evidence, we did not find that the failure report was part of it. While reserving judgment on these writ petitions and calling upon the parties to submit their notes of arguments, we also required Mr. Singh to place on record the failure report by 19th August 2022. The failure report has since been tendered in Court on 22nd August 2022 and accepted by an order passed that day, upon grant of an 23 1-Judgment-oswpl19001-2022 & connected -F oral prayer for condonation of delay.
43. We would have adjudicated the rival claims based on the arguments advanced by the parties if the situation, obtaining as on the dates of institution of these three (3) writ petitions, subsisted. Although during the pendency of the writ petitions, learned senior counsel appearing on behalf of the respondents had orally assured the Court that no adverse/coercive action would be taken against the petitioners till such time this Court decides the writ petitions, neither any assurance was given by Mr. Singh nor could have any such assurance been given by him that the Conciliation Officer, despite being under a statutory duty, would not submit the failure report before the Government of India. In fact, as on date the writ petitions were instituted, the Conciliation Officer had recorded minutes of proceedings dated 6th June, 2022 that conciliation had ended in failure. There was, thus, no impediment for the Conciliation Officer to transmit his failure report dated 17 th August 2022 to the Government of India.
44. In the decision reported in (2010) 3 SCC 470 [Sheshambal (Dead) Through LRs. Vs. Chelur Corporation Chelur Building & Ors.], the Supreme Court held as follows:
"17. While it is true that the right to relief must be judged by reference to the date suit or the legal proceedings were instituted, it is equally true that if subsequent to the filing of the suit, certain developments take place that have a bearing on the right to relief claimed by a party, such subsequent events cannot be shut out from consideration. What the court in such a situation is expected to do is to examine the impact of the said subsequent development on the 24 1-Judgment-oswpl19001-2022 & connected -F right to relief claimed by a party and, if necessary, mould the relief suitably so that the same is tailored to the situation that obtains on the date the relief is actually granted."
45. We have examined the impact of submission of the failure report by the Conciliation Officer on the right to relief claimed by the petitioners. Such submission, in our considered opinion, takes the wind out of the petitioners' sails. The arguments advanced by Mr. Singhvi, Mr. Desai and Mr. Shetty, based on the provisions of section 33(1)(a) of the ID Act, do not hold worth any longer. Indeed, conscious of such a position, the concluding portion of the written note of arguments filed on behalf of the petitioning Association reads as follows:
(a) The petitioner has not approached this Hon'ble Court for a declaration that its members are entitled to reside in the colonies till the cessation of their services -
that is the subject matter of the industrial dispute raised by it and the petitioner Unions in the companion petitions, and it will be for the learned Central Government Industrial Tribunal, Mumbai to adjudicate such dispute on its merits. The relief sought by the petitioner is in a narrow compass - it is, in light of the unequivocal mandate of section 33(1)(a) of the ID Act, restricted to restraining the respondents from evicting the workmen and initiating disciplinary and penal action against them, during the pendency of the conciliation proceedings, and now (since the failure report is stated to have been submitted to the appropriate government) 25 1-Judgment-oswpl19001-2022 & connected -F pending the making of a reference and its adjudication.
(b) The situation that obtains today is that close to 300 workmen (sum total of members of all 3 petitioner Unions) and their families are residing in the colonies. There are two schools partly aided by the Bombay Municipal Corporation and the respondent no.5-State of Maharashtra, which are in the midst of the academic year and where the children of the workmen are admitted and studying. The current rates of House Rent Allowance are in the range of Rs. 4000-6000 for the presently concerned workmen (and Rs. 10,000 at highest for executive level employees). Added to this is the fact that a number of the members workmen are, admittedly, suffering covid-related cuts (of up to 40%) to their pay which the respondent no.2 Company has still not lifted. Even if the workmen were to consider re- locating themselves in rental accommodation far outside the municipal limits of Greater Mumbai, it would be a financial impossibility. In these circumstances, grave and irreparable harm and prejudice would be caused to the workmen if the respondents are not restrained from evicting and pursuing disciplinary and penal measures against them, at least until the industrial dispute is referred to and adjudicated by the learned CGIT.
(emphasis ours)
46. We are afraid, once the failure report has been submitted before the Government of India, the protection that section 33(1)(a) of the ID Act envisages is no longer available 26 1-Judgment-oswpl19001-2022 & connected -F to the members of the petitioners. If at all there exists an industrial dispute between the employer and the workmen within the meaning of section 2(k) thereof, law must now take its own course.
47. In view of the changed circumstances, relief as claimed in the writ petitions cannot be granted. However, the subsequent/intervening event of submission of the failure report calls for moulding of relief that was claimed. We need to tailor it to the situation that obtains today as well as to meet the justice of the case.
48. Regard being had to the ensuing Ganesh Chaturthi festival, which is so passionately celebrated by the people of this State with ritualistic devotion, requiring the members of the petitioners to vacate now would be too harsh. Therefore, we direct as follows:
a) Till 24th September, 2022 but not beyond, the members of the petitioners are permitted to occupy their respective allotted accommodation.
b) If any employee continues to occupy his allotted accommodation till that date, no coercive/adverse action as threatened by the impugned letters/notices be taken against him.
c) Upon expiry of 24th September, 2022, action in terms of the 1971 Act may be taken together with such other action as is available to the respondents in law against those employees who choose not to vacate their respective allotted accommodation.27
1-Judgment-oswpl19001-2022 & connected -F
d) Government of India may make a reference under section 10 of the ID Act by 15th September, 2022 and if reference is not considered expedient for any valid reason, the consequential order may be passed within the same date.
e) Depending on the nature of decision taken by the Government of India, the parties will be at liberty to adopt such course of action in future as permitted by law.
f) Should a reference under section 10 of the ID Act be made by the Government of India to the appropriate Tribunal for adjudication, such Tribunal will be free to decide the rival claims and grant such relief, if at all, in accordance with law.
g) If the Government of India does not make the reference on the premise that there exists no industrial dispute for reference or otherwise, it will be open to the members of the petitioners to work out their remedy in accordance with law.
49. The writ petitions stand disposed of on the aforesaid terms.
50. Except to the extent decided by this judgement, all other contentions are kept open.
51. All interim applications, including Interim Application (L) No.22361 of 2022 seeking intervention, stand disposed of.
52. Parties shall bear their own costs.
(M. S. KARNIK, J.) (CHIEF JUSTICE)
Digitally
signed by
ATUL
ATUL GANESH
GANESH KULKARNI
KULKARNI Date:
2022.08.25
20:02:19
+0530
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