Ashok Agarwal, J.
1. The Pilots of Air India have come up with a grievance that Air India has introduced direct non-stopping flights to London and in the process by issue of a unilateral order has increased their flight-time and flight-duty-time. This has violated the settlement arrived at on 22nd September, 1971. That settlement was reiterated in the settlements of 2nd April 1982 and 20th November, 1984. The unilateral action on the part of the Air India of increasing the flight-time and the flight-duty-time of the Pilots is an affront to the valuable rights of the Pilots under the Industrial Disputes Act, 1947 (hereinafter referred to as the I.D. Act) as also under the aforesaid settlements 1971, 1982 and 1984. The impugned order has been motivated solely for the purpose of profit-making. It has ignored the safety measures in regard to the crew and the passengers and hence is liable to be struck down.
2. The Indian Pilots Guild, representing the Pilots of Air India, has averred that after elaborate collective bargaining it had reached an amicable bilateral agreement with their employers, the Air India, which agreement was signed between the parties as far back as on 22nd September, 1971. That agreement, after defining 'flight duty time' and 'flight time', prescribed the total 'flight time' at 9 hrs. and 'flight duty time' at 12 hrs. It provided that the flight duty time could be extended beyond 12 hours, en route, by two hours only and that too at the sole discretion of the Commander. According to the petitioners, this agreement dated 22nd September, 1971 in respect of the flight duty hours remained unchanged. The subsequent settlements dated 2nd April, 1982 and 20th November, 1984 in clear terms provided that all existing agreements/settlements shall continue to remain in force except in so far as they are specifically modified or amended. Since the settlements of 2nd April, 1982 and 20th November, 1984 had not specifically modified or amended the flight-time and the fiight-duty-time prescribed by the settlement dated 22nd September, 1971, the same were specifically saved.
3. According to the petitioners, the agreement dated 22nd September, 1971 is a settlement within the meaning of Section 2(p) of the I.D. Act. That settlement had, therefore, a statutory binding force as contemplated under Section 18 of the I.D. Act. Even if the said agreement of the 22nd September, 1971 was not a settlement within the meaning of Section (p) of the I.D. Act as held by his Honour Judge Shri G.H. Guttal (as he then was) in the Notice of Motion in Short Cause Suit No. 6903 of 1974, the terms contained in the said agreement having been embodied in the subsequent settlements of the 2nd April, 1982 ana 20th November, 1984, were deemed to constitute settlements within the meaning of Section 2(p) of the I.D. Act. The petitioner further contended that the view expressed in Short Cause Suit No. 6903 of 1974, that the agreement dated 22nd September, 1971 was not a settlement within, the meaning of Section 2(p) of the I.D. Act, was no longer good in view of the subsequent decisions in the case of Ail India Cabin Crew Association and Ors. v. Air India reported in : (1981)IILLJ306Bom and in the case of Workmen of Hindustan Lever Limited v. Hindustan Lever Limited reported in : (1984)IILLJ391SC . It is further contended that under Section 19(2) of the I.D. Act, the settlement of 1971 continued to be binding until the same was duly terminated after following the procedure provided under the Industrial Disputes Act. Since the employers, the Air India, had not rescinded the said settlement by giving notice, it was binding upon them. By issuing the impugned order, the Management has committed the breach of the settlement, which is an offence under Section 29 of the I.D. Act. The respondent No. 2 was thus not authorised in passing any order altering or changing the flight and duty time limitations and this has been made penal under Section 29 of the I.D. Act. Under these circumstances, the petitioners prayed for a direction against the management of Respondent No. 2 from refraining from giving the effect to the impugned order dated 9th February, 1988.
4. Mr. Damania, the learned Counsel appearing in support of the petition, reiterated the aforesaid contentions of the petitioners and strenuously urged that the Respondent No. 2, Air India, is a State as contemplated under Article 12 of the Constitution of India. The Respondent No. 2 is an Authority as contemplated under Article 226 and the Petitioner Pilots, who are the employees of the Respondent No. 2, enjoy all the fundamental rights, which are guaranteed under Articles 14, 19, 21, etc. of the Constitution of India. Though Air India was a State under Article 12 of the Constitution, it was not a State under the other Articles of the Constitution. It was, therefore, not entitled to issue administrative orders of the type impugned in this petition. According to him, the Respondent No. 2 had no authority to set at naught the agreement specifying the terms and conditions of service, viz, night time and flight duty time. According to Mr. Damania, the only course open to the Respondent No. 2, was to terminate the settlement and arrive at a fresh settlement after following the due procedure provided under the I.D. Act. The impugned action being an unfair labour practice was also an offence under Section 25-U of the I.D. Act.
5. Mr. Damania further submitted that the agreement prescribing 9 hours of flight time and 12 hours of flight duty time had been prescribed as far back as in the year 1971. With the passage of time air traffic had considerably increased. The congestion in the Air-ports had also substantially increased. There was on that account an increased need to reduce the flight duty hours. The only justification set up by the management to increase the said hours was that the financial condition of Air India was in the red, as the other Airlines had started direct non-stopping flights taking away the valuable business from the Air India. It was with a view to make the operations of Air India viable that it was necessary to start the non-stop direct flights between Bombay-London and Delhi-London. The said measure adopted by the Air India, apart from being illegal, was derogatory of the functions of the Corporation to provide safe, efficient, adequate and economical Air transport Service as contemplated under Section 7 of the Air Corporation Act. Mr. Damania also challenged the virus of the provisions of second proviso to Section 9-A of the I.D. Act. According to him, the Management could not on the strength of the Notification issued under the said provisions claim exemption from following the procedure of giving a notice under Section 9-A for terminating the settlement. Mr. Damania thus submitted that looked at from any angle the impugned order was wholly undefendable and was liable to be struck down. Dt. 9-9-1988.
10. Mr. Nariman, the learned Counsel appearing on behalf of the management, the Respondent No. 2, commenced his submissions by making a couple of concessions. He stated that as far as the present proceedings are concerned, the Pilots would be workmen as contemplated under the Industrial Disputes Act. He further stated that the settlement of 1971, though not a settlement under Section 2(p) of the I.D. Act, would continue to bind the parties to the settlement if the said settlement is found to be in existence on the date of the impugned order. Even if such a settlement either under its terms or by act of the parties, was terminated the same would continue to operate and its terms would continue to be binding till the same was replaced by another settlement or award, Life Insurance Corporation of India v. D.J. Bahadur and Ors. : (1981)ILLJ1SC . He also conceded that the judgment and order dated 24th October, 1974 of his Honour Judge Guttal (as he then was) in Notice of Motion No. 4786 of 1984 in suit No. 6903 of 1974 would not operate as res judicata as the same had been passed at an interlocutory stage of the suit.
11. Mr. Nariman resisted the petition by contending that the present writ petition seeks to enforce the terms of settlement of 1971. In effect, the petition seeks to raise an industrial dispute and hence is misconceived. The disputes raised are in respect of hours of work and rest intervals, which are found in item No. 3 of Schedule III and was an industrial dispute as contemplated under Section 2(k) of the I.D. Act. Hence the only remedy opened to the petitioners was to seek a reference under Section 10 for adjudication or under Section 36-A for interpretation of the terms of the settlement of 1971. The petitioners, thus, had ample alternate and efficacious remedy and hence the writ petition was not maintainable.
12. According to Mr. Nariman, the Respondent No. 2 had passed the impugned order in the discharge of the. management functions under Section 7(1) of the Air Corporations Act, 1953 read with Air-India Employees' Service Regulations. Regulation 11 (ii) which enjoins all the employees to comply with the orders issued from time to time relating to attendance, hours of work, shifts,--rest intervals or rest pauses, etc., had been framed in exercise of the powers conferred under Section 45(2)(b) of the Air Corporation Act. Hence the said order was legal and valid and cannot be termed as without the force of law.
13. Mr. Nariman submitted that the agreement of 1971, was not a validly subsisting agreement as the said agreement had expired, under clause 6, on 30th March, 1974. The said agreement was not subsisting on the date of the settlements of 1982 and 1984. Hence the terms of 1971 agreement relating to the flight hours and flight duty hours could not be saved under the 1982 and 1984 settlements. Assuming that the 1971 agreement was subsisting and as per the concessions made by Mr. Nariman the same was subsisting till the same was not replaced by a fresh agreement or settlement, the Respondent No. 2, management, was not obliged to give a notice of change as required under Section 9-A of the I.D, Act, Air India, the Respondent No. 2, has been exempted from doing so by issuing a Notification, Exhibit-E, annexed to the petition. That Notification was issued under the proviso (b) of Section 9-A. Consequently, the Respondent o. 2 was not required to give a notice of change as contemplated under Section 9-A of the I.D. Act.
Mr. Nariman pointed out that there was a long standing need to start long distance non-stop flights. The need to do so was all the more great as other Airlines had started such flights and had thereby taken away the customers who preferred those non-stop flights. This had brought about heavy financial loss to Air India. The Respondent No. 2, therefore, as far back as 1980 had started negotiating with the petitioners for arriving at terms for operating such non-stop flights. By a joint letter dated 21st December, 1984 the Pilots as also the Flight Engineers had requested for amicable terms. During the entire correspondence that ensued, the petitioners had kept the management at bay and had sought to negotiate on terms and conditions of service in regard to matters other than the ones which are the subject matter of the present petition. The negotiations set up by the petitioners had never raised the plea or safety of the crew or passengers but had merely sought better remunerations for the extra flight and duty hours. The ground of safety was an after thought and a false bogie set up merely in order to bolster the claim set up in the petition. Despite the efforts on the part of the management, which went on for a period of almost eight years, the petitioners failed to arrive at a reasonable settlement. On 5th February, 1988 the Flight Engineers, who were equally concerned about the safety of the crew and the passengers, arrived at a settlement for operating the long distance non-stop flights. It was, in these circumstances, that the Respondent No. 2 was constrained to pass the impugned order. That order merely prescribed or regulated the hours of duty of the Pilots. According to Mr. Nariman on a proper construction of 1971 agreement, it was permissible to alter the flight-time and flight-duty-time. The pilots had been duly compensated for the additional hours of duty and hence no fault could be found with it. Mr. Nariman finally contended that no case had been made out by the petitioners for the exercise of the extraordinary discretionary writ jurisdiction. Justice was not on the side of the petitioners. He, therefore, submitted that the petitioner was liable to be dismissed.
14. Having considered the rival submissions advanced in the case, in my judgment, the contentions raised by the petitioners are devoid of substance and those of Respondent No. 2 merit acceptance. Consequently the petition is liable to be dismissed.
15. It is to be noted that the Settlement of 1971 was preceded to memo of demand dated 20th September, 1969. The said demands, inter alia, claimed revision of salary structure and long haul allowance payable to pilots in hard foreign currency at a station of his choice through pass books issued individually to them. For Sr. Captain an amount of Rs. 800/- and for Captain an amount of Rs. 700/- per month was claimed. Under clause 6 of the charter of demands overtime allowance was claimed for a pilot who exceeded flight-duty-time of 75 hours in any 30 consecutive days- for the Sr. Captain at Rs. 150/- and for Captain at Rs. 120/- per hour. These demands show that long haul flights and longer flight duty hours were in contemplation even on the date of the said demands.
16. The agreement of 1971, after defining in Clause 5, Flight-Duty-Time, Flight-Time, Total Hours of duty, Rest period. Clear Rest, Layover, etc. laid down limitations for flight-time at 9 hours (schedule) and flight-duty-time at 12 hours. It specifically provided that the flight-duty-time beyond twelve hours can be increased by adding two hours at the discretion of the Commander. Once the flight has commenced the flight-duty-time will be the only governing factor even though the flight-time may exceed due to adverse winds, diversions, etc. Note 1 appended to clause V provided that in fostering the pilots in accordance with the limitations laid down in item 5(b) above in respect of flight-time following exception shall continue:
Perth/Sydney/Nandi and return--till such time there is only one service per week.
However, on completion of such, a flight extending the Flight Time the Pilot concerned will be granted the clear rest prescribed in the agreement.
Note 2 provided that for any Charter Flight a realistic schedule will be made calculated on headwind factor. Such schedule will not be less than the time shown in the time table of other Air Lines operating the route with similar aircraft.
Note 4 provided that Flight between Bombay and Rome/Geneva or any other continental point or vice-versa with an intermediate landing will not be scheduled with two pilots. This will be reviewed when the present kind of operations are changed.
Note 5 provided that Flights between points on the continent of Europe and New York with a stop at London will not be schedule with 2 pilots. However, 2 pilots can be scheduled on non-stop flights between India and Europe or points in Europe and U.S.A. or vice-versa.
17. Clause 5(c) of the said settlement which deals with Charter Operations provided that Pilots will operate charter flights in excess of Flight-Time of 9 hours and Flight-Duty-Time of 12 hours but subject to following limits with a crew complement of one Commander and two qualified Copilots.
Flight Time - 11 hours.
Flight duty time - 14 hours,
Note (i) provided that for this purpose, charter flights will include rescheduled flights on charter basis, extra sections on charter basis and ferry flights.
Note (ii) provided that Scheduled flights operated on charter basis and making scheduled stops will entail crew change at normal crew change stations. Note III provided that the number of landings in case of such charter flights will not exceed 3, except for diversion,
18. Clause 5(e) provided for periodical flight time limitations of 30, 50, 80 and 800 hours for 7, 15 and 30 consecutive days and for one calendar year, respectively,
19. Clauses 5(g) provided for minimum rest of 10 hours, 12 hours and 16 hours in case of flight-duty-time ranging from below 6 hours and upto 12 hours. Under note (1) of Clause 5(g) it was provided that in case of flight-duty-time exceeding 12 hours, the rest period will be 20 hours of clear rest.
20. In my judgment, the terms of 1971 agreement though had provided limitations of flight-time at 9 hours (Schedule) and flight-duty-time at 12 hours, the said limitations were not absolute: The agreement itself, contemplated the said hours to be extended in certain contingencies. Additional rest and additional payment was provided for extra flight-time or flight-duty time which was required to be undertaken by the Pilots. Hence I find merit in the contention of Mr. Nariman that the flight-time of nine hours and flight-duty-time of twelve hours were not intended to be unalterable. The same were made specifically relaxable on payment of compensatory allowance. Clause (xi) provided for compensatory payment. It provided that in consideration of the relaxation of flight time and flight duty time for operation of charter flights in para 5(c) above, Pilots of the Corporation, whether such charter flights are operated or not, will be eligible, with effect from 1st October 1970 to the compensatory payments provided under the said clause. That compensatory payment was increased under the agreement dated 30th August, 1977 and under the Standing Orders issued in consequence thereof. Mr. Nariman on taking instructions made statement at the Bar, which statement was not refuted by Mr. Damania, that the compensatory allowance was paid by the Respondent No. 2 and was received by all the Pilots irrespective of whether they had or had not operated the charter flights.
21. In this view of the matter, it will have to be held that the Pilots have received benefits of the clause relating to flights which entailed flight hours and flight duty hours over 9 and 12 respectively. Hence I am inclined to accept the contention of Mr. Nariman that there was no breach of 1971 agreement in issuing the impugned order inasmuch as adequate compensation had been provided for additional flight time and flight duty time required to be undertaken by the Pilots. It will be noticed that though 1971 agreement contemplated charter flights entailing flight time of 11 hours and flight duty time of 14 hours, neither of the parties considered that, that would offend the safety of the concerned flights. The record note effective from 9th November 1988 shows that the petitioners had given relaxation in the flight time of nine hours in order to enable the respondent No. 2 to operate flights on different sectors including U.K. The record note provided-
'It has been agreed to enhance the existing charter compensatory allowance by an additional 10% for all the Pilots/Flight Engineers for exceeding the 9 hours time limit on 747 Delhi/Rome, Delhi/Frankfurt, Bombay/Rome, London/Delhi and London/Bombay flights'.
It is true that as pointed out by Mr.Damania that the flight time of 11 hours and flight duty time of 14 hours for charter flights provided for an additional pilot and such an additional Pilot was not provided for in the impugned order. However, it would be relevant to note that charter flights entailed landings not exceeding three and the impugned order was in respect of non-stop direct flights. The letter dated 13th November, 1969 of the then General Manager, Air Marshal M.S. Chaturvedi, addressed to the petitioner, on which heavy reliance was placed by the petitioners in their affidavit in rejoinder, provided for expert guidance in regard to crew complement in case of increase in flight time and flight duty time. The said letter in para 2.1 provided for a crew of 1 Captain, 1 First Officer, 1 Navigator/Radio Officer and 1 Flight Engineer for a flight time of 9 hours and duty time of 12 hours. Note (ii) provided that the above limitations are in respect of flights involving more than one landing. In the case of non-stop flights, the flight and duty time can be increased by 2 hours. If the flight time of nine hours and the flight duty time of eleven hours as provided in the 1971 agreement contemplated two or three landings and if the present direct flights involved no intermittent landing it would be safe to permit, on the strength of the expert opinion of Air Marshal Chaturvedi to add two hours to the aforesaid 9 and 12 hours. Hence the flight hours of 10 1/2 and duty hours of 14 provided under the impugned order cannot be characterised as an hazard to the safety or as infringing the basic terms of the 1971 agreement. It may be noted that no grievance has been made on behalf of the petitioner in respect of any violation in regard to the rest period or periodical flight time limitations. On the contrary, the record shows that the Pilots were granted more lay over than the entitlement of rest under the 1971 agreement.
22. By a letter dated 24th April, 1980 the petitioners offered to discuss the difficulties in the matter of the introduction of the fast flights on the Bombay-London Sector. The record note of the discussions between the petitioners and the Respondent No. 2 held on 4th June, 1980 shows that the petitioners had given proposal in respect of operations of Bombay-London/ Delhi-London direct flights. It was suggested that all take off be scheduled for 08.30 I.S.T., Pilots be given 16 hrs. clear rest prior to commencement of flight, it be a two Pilots operation with flight time 10 hrs., duty time13 hrs. with Commanders' discretion to extend duty time limited to present agreement of 14 hours. The petitioners inter alia claimed rest at London after completion of flight two clear nights rest total time between landing and next take off with a minimum of 60 hours, A special allowance increase by 100% of present amount at same rate of exchange at all stations for all flights for all Pilots was claimed. Though under the said proposal, the flight duty time was extendable upto 14 hours, the petitioners had not even remotely contemplated any safety hazards in respect of the said flights. I have been taken through the voluminous correspondence that had ensued between the parties during the period between 18th July 1980 and the passing of the impugned order dated 9th February, 1988, and I am more than satisfied that this is not a case where the Respondent No. 2 on one fine morning without giving any notice, had issued a unilateral order entailing unjustified increasing flight time and flight duty time on the Pilots. The said correspondence shows that every effort was made by the Respondent No. 2 to arrive at an amicable settlement. Proposals and counter-proposals were exchanged, and during the substantial period of the said negotiations, the safety factor had not even occurred to the petitioners. Hence, I find considerable force in the contention of Mr. Nariman that the safety factor has been set up by the petitioners merely as a window-dressing for pressing the claim set up in the petition. The said correspondence can justifiably be construed as a due notice on the part of the management to terminate the terms of 1971 agreement. The Flight Engineers after due negotiations did arrive at a settlement on 5th February, 1988. Surely the Flight Engineers are concerned as anybody else regarding the safety measures. If the Flight Engineers have arrived at a settlement, it would be reasonable to infer that they did not consider the flight proposed by the Respondent No. 2 as entailing safety hazard, On the same reasoning the contention of Mr. Damania that the Respondent No. 2 had issued the impugned Order without consulting the petitioners as required under Annexure-II, Clause (4) of the 1971 agreement is without any substance. Though it may be hazardous to give any positive finding as to whether a particular flight time or flight duty time would post a safety hazard, it may be relevant to note that the Trans World Airlines operates flights entailing 11.25 flight hours and 15 flight duty hours. The Regulations framed by Federal Aviation Agency of U.S.A. provides for a maximum of 12 hours during the 24 consecutive hours by way of flight time limitations for a crew of two pilots and one additional flight crew member. The said regulations have been referred in the Khosala Award and it has been observed that the safety factor is part of the duties of the Civil Aviation Department and it is the Director of Civil Aviation who, by taking into consideration the circumstances of the case, is authorised to fix the upper limits of the flying time. Such limits have been fixed under Rule 42-A of the Indian Air Craft Rules, 1957. There is no ceiling on the number of hours which can be flown by the pilots within a period of 24 hours but it is provided that no pilots should be made to fly for more than 125 hours in any period of 30 consecutive days. It would be reasonable to assume that the Director of Civil Aviation had taken into consideration the results of modern scientific investigations into the type of fatigue to which members of the flight crew are subject to in jet airplanes. Though under the impugned order flight time has been provided at 10 1/2 hours, experience has shown that 96% of the non-stop flights do not exceed 10 hours. I have been taken through the various agreements in respect of different Air lines such as Bangladesh Airlines, Qantas Airways, etc. Having considered all the materials on record, I am satisfied that the impugned order does not entail any safety hazard. I may add that had I been satisfied that the flight time and flight duty hours fixed by the impugned order has posed a safety hazard, I would not have hesitated, in the least, to strike down the impugned order. However, having regard to the facts placed before me, I am satisfied that the said order does not entail any safety hazard so as to invoke the powers of the Court to issue an appropriate writ directing the Respondent No. 2 to forebear from enforcing the same.
23. Having found against the petitioners on the merits of their claim, it may not be strictly necessary to dwell on the technical objections raised by Mr. Nariman in respect of the maintainability of the writ petition. However, in order that this judgment is complete I will proceed to deal with them. I am inclined to uphold the contention that the present writ petition seeks to enforce the terms of 1971 settlement. In effect the writ petition seeks to raise an industrial dispute and hence is not maintainable.
24. In the case of Scindia Steam Navigation Co. Ltd. v. Scindia Employees' Union and Ors. reported in : (1983)IILLJ476Bom this Court had occasion to consider the question of the maintainability of a petition claiming a writ in the nature of mandamus against the Company not for the performance of a public or statutory duty but to enforce a contractual obligation. It was observed that if the terms of an agreement which is described a settlement under Section 2(p) of the I.D. Act, by virtue of the effect of extension brought about by Section 18(1) of the Act, is nothing more than making the terms of settlement a part of contract of employment or terms of employment, it is difficult to hold that the provisions of Section 18(1) have the effect of creating a statutory duty or a public duty against any party to the agreement. Reliance on that penal provision in Section 29 would not take the matter any further and it would not have the effect of converting what in essence is a contractual, obligation into a statutory obligation. The fact that the breach of settlement is made punishable cannot be taken as conclusive of any intention on the part of the Legislature to give a settlement, which in essence is nothing more than an agreement, the status of an instrument creating a statutory right or obligation.
The Industrial Disputes Act, no doubt, is extended to secure peace and harmony in the industrial field. But it is difficult to see how this must necessarily lead to the conclusion that what in essence is a contractual obligation must be construed as a public duty. When it is said that mandamus will issue for the enforcement of a public duty, then, as observed by Garner in Administrative Law, 5th Edition, p. 208. 'The duty which is sought to enforce by order of mandamus must be of a public nature. A contractual obligation between an employer and employee can hardly be said to have the character of public nature. It is purely a private contract between two parties to the agreement, namely, the employer and the employee and a writ will not lie to enforce such a contractual obligation.
25. In the case of Radhakrishna Agarwal and Ors. v. The State of Bihar and Ors. reported in : [1977]3SCR249 the Supreme Court had approved the division made by the Patna High Court in respect of the breaches of alleged obligations by the State or its Agents. The third category of breach contemplated was in respect of a contract entered into between the State and the person aggrieved which is non-statutory and purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the party complaints about breach of such contract by the State. If the breach complained of is of this nature, it was held that the power under Article 226 of the Constitution cannot be invoked.
26. In the case between Bank of Baroda v Triveni Prasad Mishra, reported in : (1988)IILLJ163Bom , it was held that, in a suit for declaration of a date of birth and injunction restraining Bank from retiring the plaintiff the right claimed by the plaintiff is not a common law right but a right under a special statute. It was found that the dispute raised by the plaintiff was an industrial dispute to be exclusively entertained and decided by the machinery constituted under the Industrial Disputes Act.
27. In the case of Graduate Employees' Union v. State of Tamil Nadu, reported in 1988 (1) LLN 196 where the employees' union after terminating a settlement under Section 19 of the Industrial Disputes Act placed a charter of demands and when conciliation failed the Management sought to implement certain changes in service conditions under Section 9-A of the I.D. Act. When the Union alleged that the Management had contravened the assurance that they would not implement Section 9-A notice until the matter was settled or adjudicated upon by the Industrial Tribunal, it was held that Section 33 of the Industrial Disputes Act provides for alteration of conditions of service during the pendency of the Industrial Disputes and conciliation proceedings and Section 9-A of the I.D. Act provides for the procedure for alteration of conditions of service in respect of matters specified in the 4th Schedule, when there is no industrial dispute or conciliation proceedings pending. There is no provision in the Act prohibiting the management from altering conditions of service after following the procedure prescribed thereunder. Once the management complies with the express provision of the Act it cannot be said to owe a public duty or statutory duty to wait a reference which could be made at the instance of the workers before implementing the proposals contained in the notice under Section 9-A of the Act. The writ of mandamus could be issued only for the performance of an act which is in the nature of public duty.
28. In view of the aforesaid decision, it will have to be held that the present writ petition claiming the reliefs contained therein is not maintainable. Mr. Damania, however, placed reliance on the decision of the Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd. reported in : AIR1983SC848 wherein the State, on the application of the principle of promissory estoppel, was restrained from backing out of its statutory obligations arising under a contract. In that case, however, it was found that Gujarat State Financial Corporation had entered into agreement in performance of its statutory duty to advance loan to a company and acting on undertaking the Company had proceeded to undertake and execute project of setting up a 4-Star Hotel by incurring huge expenses and suffering substantial liabilities. In such circumstances the Corporation was estopped from backing out all its obligations by issue of writ of mandamus.
29. In my view, the aforesaid decision as also the case in Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and Ors. : [1979]118ITR326(SC) , on which reliance was placed can have no application to the facts of our case. It is nobody's case that the petitioners or the Pilots had, on account of any assurance made, incurred any liability so as to invite application of the principles of Promissory estoppel. In this view of the matter, it will have to be held that the present writ petition which seeks to enforce the terms of 1971 settlement is misconceived.
30. Likewise, there is considerable merit in the contention of Mr. Nariman that the present petition is not maintainable on the ground that there is ample alternate, efficacious remedy open to the petitioners. In the case of The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. reported in : (1975)IILLJ445SC the principles applicable to the jurisdiction of the Civil Court in relation to an Industrial Dispute, have been stated thus:
'(1) If the dispute is not an industrial dispute, nor does it relate to enforcement of any other right under the Act the remedy lies only in the Civil Court.
(2) If the dispute is an industrial dispute arising out of a right or liability under the general common law and not under the Act, the jurisdiction of the civil court is alternative, leaving it to the election of the suitor concerned to choose his remedy for the relief which is competent to be granted in a particular remedy.
(3) If the industrial dispute relates to the enforcement of a right or an obligation created under the Act, then the only remedy available to the suitor is to get an adjudication under the Act.
(4) If the right which is sought to be enforced is a right created under the Act such as Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising of an industrial dispute, as the case may be.
Hence the contention of Mr. Nariman that there exists an alternate remedy and hence the petition is not maintainable will have to be upheld.
31. Mr. Nariman further contended that the Respondent No. 2 was not obliged to give any notice of change under Section 9-A of the Industrial Disputes Act, since the Appropriate Government had, by Notification No. IDA-3 160- LAB-II dated 29th August, 1966, notified the Air India International Employees' Service Regulations under Clause (b) of the proviso to Section 9-A of the Industrial Disputes Act. Mr. Damania, however, contended that (1) that the Regulations which were notified i.e. Air India International Employees' Service Regulations are no longer in force; (2) the present service regulations, namely. Air India Employees Service Regulations have not been notified; (3) with effect from 19th November 1965, the Government of India is the appropriate authority and not the Government of Maharashtra, in the case of Air India; (4) the correct appropriate Government has not applied its mind and issued any notification as contemplated by Clause (b) of the proviso to Section 9-A(5) on the aforesaid amongst other reasons. It cannot be said that the Respondent No. 2 is not obliged to give notice of change under Section 9A of the I.D. Act.
32. Mr. Damania fairly conceded that so far as this Court is concerned, it would be bound by the decision in Air India Cabin Crew Association and Ors. v. Air India 1981 LLJ 306, and by the judgment dated 4th July, 1974 given by Mr. Rege, J. in Misc. Petition No. 281 of 1974 confirmed by the Division Bench Judgment dated 26th/27th/30th September 1974 in Appeal No. 157 of 1974. He, therefore, rightly did not advance the said argument before me. He will nevertheless be entitled to agitate this issue at appropriate stage and before the appropriate forum. However, as far as this Court is concerned, it will have to be held that the Respondent No. 2 under the second proviso to Section 9A of the I.D. Act.
9A
33. Mr. Damania next challenged the virus of proviso (b) of Section 9A of the I.D. Act.
9A
9A
34. It was, however, pointed out on behalf of the Respondent No. 2 that what had been challenged in the writ petition was not to the virus of the second proviso to Section 9A of the I.D. Act.
9A
9A
35. In view of the fact that the impugned order has been issued in the discharge of the management functions under Section 7(1) of the Air Corporation Act, 1953 read with the Air India Service Regulations it cannot be held as contended by Mr. Damania that the said order is without force of law.
36. Mr. Damania on placing reliance on Workmen of Delhi Cloth General Mills Ltd v. The Management of Delhi Cloth and General Mills Ltd. AIR 1970 S.C. 1851 contended that it was not open to the Respondent No .2, by issue of an administrative order, to alter the service conditions fixed by the 1971 agreement. According to Mr. Damania raising an industrial dispute under the Industrial Disputes Act was the only avenue open to the management to bring about a change in the terms of the conditions of service. He submitted that Air India is a State under Article 12 of the Constitution of India. Consequently the petitioners had the fundamental rights guaranteed under Articles 14, 19 and 21, etc. Air India is an authority under Article 226 of the Constitution so as to be enable to the writ jurisdiction of this Court. Though Air India was a State under Article 12 it was not a State for all purposes. Consequently it was not entitled to issue administrative orders. The executive power enjoyed by the Union and the State by Article 53 read with Article 73, 154 read with Article 162, respectively were not available to Corporations and the Local Authorities. Consequently the Air India had no authority to set at naught the 1971 agreement laying down the flight hours and flight duty hours of its pilots. Mr. Damania placed reliance upon the decision in the case of Petroleum Employees, Union v. Industrial Court, Maharashtra, Bombay and Anr. reported in 1981 Mah. Law Journal, page 316 wherein it was held that an employer who had entered into an agreement with the Union of employees agreeing to pay ex-gratia amount in lieu of bonus to persons who were not entitled under the Bonus Act to any bonus such payment having been made it was not open to the employer to claim back the amounts so paid on the ground that the Income Tax Act did not permit the amount to be taken into account as an expenditure. Failure to implement the agreement by claiming back the amounts amounted to Unfair Labour Practice contemplated under Section 26 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1972.
37. Mr. Damania next relied upon the case of Madanlal Pathak v. Union of India and Ors. reported in : (1978)ILLJ406SC and it was held in that case that where a settlement is arrived at between the Life Insurance Corporation and its employees for payment of annual cash bonus to Class III and Class IV employees for certain years and the settlement is approved by the Central Government and necessary 'direction' contemplated by Regulation 58 is issued by it, the Class III and Class IV employees acquire absolute right to receive annual cash bonus in terms of the provisions of the settlement. It is true that payment of non-profit sharing bonus by Life Insurance Corporation to its employees is subject to approval by Central Government under Regulation 58. However, once the settlement is approved the Central Government was not competent to issue another contrary direction which would have the effect of compelling the Life Insurance Corporation to commit a breach of its obligation under Section 18(1) of the Industrial Disputes Act.
38. Placing reliance on the aforesaid decision Mr. Damania contended that once the management had agreed to the terms and conditions in respect of flight hours and flight duty hours which terms had been duly incorporated in the 1971 settlement, it was not open to the Respondent No. 2 to resile therefrom without going through the procedure laid down under the industrial Disputes Act. In my judgment, there is no merit in the aforesaid contention. The aforesaid two decisions relied upon by Mr. Damania were not in respect of authorities to whom exemption had been granted from the provisions of Section 9A of the I.D. Act. Once it is found that the impugned order has been issued in the discharge of the management's functions under Section 7(1) of the Air Corporation Act, 1953 duly supplemented by Regulation 11(2) issued under Section 45(2)(b) of the Air Corporation Act the respondent No. 2 would be justified in issuing the said order. Once it is found that the said order does not lack authority of law, in my view the only remedy open to the petitioners would be under the Industrial Disputes Act. Hence it will have to be held that the present writ petition is not maintainable.
39. Before concluding I must observe that the petitioners have not made out a just and proper case for exercising of the extraordinary discretionary writ jurisdiction under Article 226 of the Constitution. In my judgment, even if I were to have found that the present writ petition is maintainable and the petitioners nave made out a legal ground for quashing of the impugned order, I would not have been inclined to exercise my discretion in favour of the petitioners. Various other Airlines had started operating direct flights between Bombay-London and Delhi-London. As Air India had lagged behind, the Indian as also Overseas passengers who had earlier patronised Air India, had started patronising other Air Lines entailing heavy financial losses to Air India, Mechanics had to be devised in order to make Air India viable. Voluminous correspondence ensued spreading over a period of almost eight years indicating that Air India had left no stone unturned for trying to arrive at an amicable settlement with their pilots so as to enable them to operate the non-stop direct flights. The petitioners, though I would not blame them, had set up their demands not confined only to the issue concerning the non-stop direct flights but to the other demands as well so as to bring about a package deal. While doing so they did not consider the additional flight hours and flight duty hours as entailing safety hazards. It was only as an afterthought that the safety hazard was set up as bogie for raising the pleas taken up in the petition. After due negotiations the Flight Engineers did arrive at a settlement. Surely they could not be oblivious to the safety angle involved. Left with no alternative course open Air India was constrained to issue the impugned order. Having found that the said order is legal and does not lack authority of law, it would be unjust to exercise the extraordinary discretionary writ jurisdiction in favour of the petitioners. In my view no case had been made out either in law or from the safety angle to interfere with the impugned order.
40. In this view of the matter, I find the present petition is devoid of any merits, and the same is dismissed. In the facts and circumstances of the case there shall be no order as to costs.
41. On the oral motion on behalf of the petitioners the liberty granted by my learned brother Pratap, 3. on 8th March 1988 to the members of the first petitioner to operate the flights in question under protest is extended for a period of 8 weeks.