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C.               SUBMISSIONS


15)              Mr. Talsania, the learned senior advocate appearing for

the Petitioner in both the Petitions would submit that CGIT has erred in setting aside the termination orders of the employees without appreciating the fact that the Petitioner is forced to close its security department on account of directives issued by BCAS for undertaking self-handling of security functions through Indian Air Carrier having international operations. That the CGIT has erred in holding that there is no specific direction from BCAS to the Petitioner to close down its Security Department. That closing down of Security Department is a consequence of directives issued by BCAS for doing self-handling of security functions through Indian Air carrier and that Petitioner cannot be expected to handover security functions to Indian Air carrier and at the same time pay salaries to its security personnel who are left jobless after contracting out the security functions to Indian Air carrier. He would take me through letters dated 17 May 2012 and 16 May 2013 issued by BCAS to demonstrate existence of specific directions to the Petitioner-Airlines not to perform self-handling of security functions. That one of the terminated employees, Mr. Umesh Parulekar has himself participated in meetings with BCAS for seeking approval to the Security Programme with self-handling being done by Petitioner's own 13 November 2024 Neeta Sawant WP-3547-2021-FC security staff. That the said employee was thus well aware of the position that BCAS did not permit self-handling of security functions by Petitioner-Airlines and insisted that the same must be contracted out to Indian air carrier having international operations. That therefore contracting out of security functions by Petitioner to Jet Airways was not a voluntary decision of the Petitioner and that the same was forced upon it by BCAS. That the Security Programme was ultimately approved by BCAS only after ensuring that Jet Airways was handling the security functions for passengers and Air India Carrier was handling security functions of Cargo at Mumbai Airport.

20) Mr. Govilkar would submit that two letters issued by BCAS on 17 May 2012 and 16 May 2013 cannot be read to mean any prohibition on the Petitioner-Airline in self-handling of security functions. That the true and correct interpretation of the said letters means that BCAS had merely raised queries about the security programme submitted by Petitioner-Airlines and BCAS neither intended to direct nor has factually directed discontinuation of self- handling of security functions at Mumbai Airport. That if the intention of BCAS was to prohibit self-handling of security functions by the foreign airlines, BCAS would have issued a simple direction or circular to all foreign airlines not to perform self-handling of security functions. Far from doing so, BCAS in fact contemporaneously permitted own staff of Gulf Airways (another foreign Airline) to allow self-handling of its security functions. That the learned CGIT has thus rightly taken overall view of the case for arriving at the conclusion that there was no prohibition by BCAS for performance of self-handling of security functions by Saudi Arabian Airlines. Mr. Govilkar would rely upon judgment of the Apex Court in Inspector General of Registration, Tamil Nadu and Others Versus. K. Baskaran 3 in support of his contention that it is mandatory to follow provisions of Section 25FFA of the Industrial Disputes Act requiring mandatory (2020) 14 SCC 345 13 November 2024 Neeta Sawant WP-3547-2021-FC issuance of notice of closure. That in the present case, notice of closure was not issued to the appropriate Government. The closure itself being illegal, termination of seven employees cannot stand scrutiny of law. He would submit that the alleged closure is mere farce and three employees in Writ Petition No.3574/2021 were terminated on 4 July 2013 (much before closure) on the false pretext of reduction of workload. He also rely upon judgment of Apex Court in Armed Forces Ex Officers Multi Services Co-operative Society Limited Versus. Rashtriya Mazdoor Sangh (INTUC)4.

21) Mr. Siddiqui would appear on behalf of the Respondent- Union in Writ Petition No. 3547/2021 relating to termination of three employees. He would take me through AVSEC Order Nos.3/2009 and 5/2009 to bring home the case that both the Circulars do not contemplate any restriction or prohibition on any foreign airline from doing self-handling of security functions. He would submit that in fact AVSEC Order No.3/2009 specifically mandates performance of enlisted security functions by the concerned airlines security personnel. That the Airline is also mandated to designate a Security Coordinator at each Airport. He would submit that since AVSEC Order No.3/2009 contemplates carrying out of security functions by the concerned airlines through own security personnel possessing competencies required to perform their duties, as well as training coupled with deployment of Security Coordinator, it is inconceivable that BCAS would ever impose any prohibition on Petitioner-Airline from undertaking self-handling of security functions. He would submit that Petitioner has erroneously relied upon Circular issued by the Director General of Civil Aviation, Aeronautical Information Services bearing AIC SL.No.3/2010 dated (2022) 9 SCC 586 13 November 2024 Neeta Sawant WP-3547-2021-FC 2 June 2010, which deals with 'ground handling' which is entirely different from 'security functions' which are covered only by the provisions of AVSEC Order Nos. 3/2009 and 5/2009. Mr. Siddiqui would further submit that BCAS's letter dated 17 May 2012 has been deliberately misinterpreted by Petitioner-Airlines. Para-5 of the said letter prohibited Petitioner from doing self-handling only because certain clauses of Security Programme at Mumbai Station were not agreed due to certain deficiencies. He would submit that use of the words 'hence' in para-5 of the letter dated 17 May 2012 makes a world of difference and indicates that the prohibition sought to be suggested was only temporary till clearance of all deficiencies. He would submit that the said letter dated 17 May 2012 directed clearance of various deficiencies indicating submission of appointment letter of Chief Security Officer. If security functions were not to be performed by foreign Airlines, it is inconceivable that BCAS would require submission of appointment letter of Chief Security Officer of Petitioner. He would submit that even subsequent letter dated 16 May 2013 also calls upon Petitioner to take corrective measures. He would particularly rely upon letter dated 16 May 2013 issued by BCAS to Gulf Airways on the basis of same security audit conducted from 2nd to 5th April 2013 and pointing out the deficiencies in the security arrangements of Gulf Airways. If there was any prohibition for foreign airlines to undertake self-handling of security functions, even Gulf Airways would have been prohibited from self- handling of security functions. On the contrary, Gulf Airways was directed to cure shortage of security staff at Mumbai. He would rely upon para-9 of letter dated 31 December 2014 about BCAS approving security programme of Petitioner in which undertaking was sought for compliance with BCAS Circulars, especially AVSEC Order No.5/2009. That Clause (D) of AVSEC Order No.5/2009 13 November 2024 Neeta Sawant WP-3547-2021-FC requires all foreign airlines to post its own India-based Security Supervisors/Officers responsible for all matters relating to security of its operations. That once an undertaking to comply with AVSEC Order No.5/2009 is submitted, it became mandatory for Petitioner- Airlines to post its own India-based Security Supervisors/Officers at Mumbai Airport. That therefore Petitioner could not have closed its Security Department in Mumbai, which in fact is in violation of AVSEC Order Nos. 3/2009 and 5/2009. He would submit that approval of security programme by BCAS on 31 December 2014 has no co-relation with closure of Security Department or termination of 7 + 3=10 employees as the approval was given after passing of one year and three months of termination.

(emphasis added)

32) After perusal of the findings recorded by the learned Tribunal, I am of the view that there is basic problem in the manner in which the problem has been approached by it. The Tribunal embarked upon an unnecessary inquiry about existence of direction 13 November 2024 Neeta Sawant WP-3547-2021-FC by BCAS to close security department of Petitioner-Airline. By formulating a wrong question, the Tribunal proceeded in a wrong direction. The Tribunal ought to have appreciated that BCAS could not have issued any directions for closure of security department. BCAS could only approve the security programme by ensuring that the arrangements made by Petitioner conformed to the AVSEC Orders. Therefore, the issue before the CGIT was whether BCAS had shown any disinclination for approving Petitioner's security programme at Mumbai Airport owing to it performing self-handling of security functions. Hence no inquiry was necessary into the aspect of existence of direction for closure of security department by BCAS. Closure of security department is the decision of Petitioner-Airline because it perceived the letters issued by BCAS as prohibition on performance of self-handling of security functions. In that view, reliance by CGIT on evidence of management witness Mr. Adil Khan or on reply to RTI query by BCAS vide letter dated 26 September 2013 about existence of direction by BCAS for closure of security department is totally misplaced.