Judgment:
1. The writ petition is filed challenging the order of the second respondent dated 26.5.2010 and for direction to pay all the benefits to the petitioner from 26.5.2010. As per the impugned order, the petitioners services were terminated under Service Regulation 13(a).
2. The petitioner was appointed originally as a Aircraft Technician in the then M/s.Indian Airlines on 1.11.1980 and he was in service for 30 years. He was promoted to the category of Aircraft Engineer with effect from 19.7.1988, Senior Aircraft Engineer with effect from 12.8.1992, Deputy Chief Aircraft Engineer with effect from 1.10.1999 and as Chief Aircraft Engineer with effect from 1.4.2007.
a) The first respondent, which is a Central Government Corporation incorporated as a Government Company, as a legal successor of the erstwhile Indian Airlines Corporation constituted and established under the Air Corporation Act, 1937 in the year 1956. The Indian Airlines Corporation was renamed as M/s.Indian Airlines Limited in the year 1994 and then renamed as National Aviation Company of India Limited (I) and again, renamed as M/s.Air India Limited.
b) The first respondent M/s.Air India Limited is the legal successor of the statutory authority constituted under the Air Corporation Act, 1937 and therefore, it is a State under Article 12 of the Constitution of India. It is stated that in the month of May, 2010, aircraft of the first respondent had suffered grave accident while landing at Mangalore Airport resulting in the death of several passengers and the accident was considered to have happened due to human error attributable to the pilot. While rescue operations were arranged, the first respondent re-routed Bangalore-Delhi Air Bus (A-320) to Mangalore on the certification of the competent Engineer at Bangalore and the aircraft landed at Mangalore was supposed to fly to New Delhi without seeing the respondent certifying Engineer.
c) It is stated that the Engineers stationed at Mangalore Airport are not competent to certify. The first respondent is stated to have obtained certification from an Engineer of M/s.King Fisher Airlines, which is against the MOE of Air India and allowed the aircraft to fly to New Delhi. According to the petitioner, the procedure is improper and it could have resulted in another major calamity since such aircraft should be certified by a competent Engineer of the first respondent and the improper certification was flashed in the news.
d) According to the petitioner, in order to ward off the publicity of the media, the first respondent issued a staff notification dated 24.5.2010, forbearing its employees from publicizing the incident. It is stated that Mr.Y.V.Raju is the General Secretary of M/s.All India Aircraft Engineers Association and the said Association organized a flash strike on 25.5.2010, protesting against the improper Certification Procedures. The petitioner is stated to be the Regional Secretary of the Association, Chennai Region.
e) Against the call given by the All India Aircraft Engineers Association for flash strike, the petitioner had to follow the same and it was, after 30 hours, the second respondent issued the impugned communication informing that the petitioner was terminated from service. The impugned communication does not contain any reason to dispense with the services of the petitioner. The petitioner preferred an appeal on 16.6.2010 to the Chairman and Managing Director of the first respondent and the appeal is still pending and there has been no reply to the appeal.
3. It is, in these circumstances, aggrieved against the order of termination, the petitioner has filed the present writ petition on various grounds including that the impugned order without assigning reason, is against law, that at the time of conciliation proceedings were going on in respect of improper certification, the second respondent should not have issued the termination order, which is against section 33(1) of the Industrial Disputes Act, 1947, that the petitioners services are governed by the Indian Airlines Service Regulations and under Regulation 13(a), in cases where the petitioner is found to be incompetent and unsuitable for continuing in employment and where his continuance will be detrimental to the interest of the Corporation or his continuance is a grave security risk or there is justifiable lack of confidence having regard to the nature of duty performed, the services of the petitioner may be terminated and according to the petitioner, the said regulation is not applicable to him and in any event, the impugned order does not disclose any reason and therefore, it is unconstitutional, that the order of termination without disciplinary proceedings is arbitrary and mala fide, that in anyone of the circumstances mentioned in regulation 13(a), the services can be dispensed with and that is not the case of the petitioner, that the impugned order is violative of Article 311(2) of the Constitution of India, that the participation of the petitioner in the flash strike on 25.5.2010 was only based on the call given by All India Association and since the same was the reason for termination, the termination itself is illegal, that there was no violent activity during the strike period and the strike went on peacefully, that similar orders of termination were passed in respect of 12 Engineers and 42 members of Air Corporation Employees Union and it is not known as to whether the Board of Directors have taken a decision to terminate the services of the petitioner and that therefore, the impugned order is arbitrary and illegal. It is stated that the first respondent has reinstated about nine Engineers and one employee who is a member of M.S.Air Corporation Employees Union after obtaining undertaking from them to the effect that they accepted the termination as legal and they were ill-advised to participate in the illegal strike and purporting to tender unconditional apology for participating the strike and therefore, the action of the first respondent in not reinstating the petitioner is violative of Article 14 of the Constitution of India and the termination is a colourable exercise of power and the petitioner has not committed any misconduct.
4. In the counter affidavit filed by the respondents along with the petition filed to vacate the interim stay granted by this Court on 7.2.2011, it is stated that the first respondent company is an airline having about 110 destinations and transporting around 35,000 passengers per day in India and abroad and it has 114 aircrafts and it is a public utility service of transportation of passengers from place to place.
a) The company suffered a massive set back as a result of air crash of Air India Express flight that occurred on 22.5.2010 at Mangalore Airport, in which 158 passengers lost their lives. The company was involved in the accident investigation initiated by the Director General of Civil Aviation and had also taken steps for payment of compensation to the families of the deceased passengers.
b) It was, at that time, the efforts of the company was to provide supporting services to the families of the deceased not only in terms of compensation but also to bring the members of the families to the site of aircraft for the purpose of identification of the deceased passengers and to help them to perform last rites by making arrangements for their stay and transport in addition to performing and completing legal formalities. The company was also taking steps to restore the confidence of travelling public and maintain normal flight operations.
c) The Chairman and Managing Director with high officials immediately rushed to the scene of accident to oversee the relief operations personally. Subsequent to the aircraft crash, Y.V.Raju, General Secretary, All India Aircraft Engineers Association went to the press and made comments about the violation of safety norms while operating the relief aircraft from Bangalore to Mangalore, which was within the purview of the regulatory authority and that created panic among the passengers.
d) He was called up to explain by letter dated 24.5.2010 and he made a walk out causing disruption of flights. The petitioner allowed the agitation in Chennai and some employees covered by the Air Corporation Employees Union also joined the agitation causing chaotic situation in the airport and cabin crew also abstained from duty. There were instances of manhandling of employees who wanted to report for duty and therefore, it affected the interest of the company.
e) As a result of this, the first respondent had to cancel various flights causing great inconvenience to the passengers. When the nation was mourning the death of passengers who lost their lives in the crash, the irresponsible action of the members of unions was utter breach of the terms of various settlements and code of discipline as they indulged in gross violation and acted in a manner resulting in destabilizing the normal function of the company and throwing the companys operations into utter chaos.
f) The sudden and flash strike called upon by the unions caused incalculable harm to the reputation of the company and also financial loss. The petitioner was holding the post of Chief Aircraft Engineer and it is stated that his annual appraisals were good, but his claim that it was always excellent may not be correct. He was the Regional Secretary of the All India Aircraft Engineers Association. It is stated that under Regulation 13(a), the Board of Directors had to take the unfortunate decision.
g) It is stated that the petitioner in his affidavit has accepted that he, being the Regional Secretary of All India Aircraft Engineers Association, Chennai Region, had to abide by the direction of his General Secretary. It is stated that the petitioner has justified his conduct of leading the flash strike and there was violation of discipline apart from inhuman and barbaric acts. It is stated that the General Secretary of the Union tried to make an issue on the certification of airworthiness of the relief aircraft, which was diverted to Mangalore and was to take off to Delhi.
h) Since no aircraft Engineers of the respondent company to certify the airworthiness of A320 Aircraft was available at Mangalore, the same was got certified by the Aircraft Engineer of Kingfisher Airlines who had the requisite qualification and also been certifying similar aircraft belong to Air Arabia and all necessary approvals/ authorizations were obtained from the Director General of Civil Aviation, that was made a big issue by the Union Office bearers including the petitioner and therefore, the management lost confidence in the petitioner and it was decided to terminate his services under regulation 13(a) which enables the management to terminate the services.
i) It is stated that since the termination is not based on misconduct, the question of giving opportunity does not arise and it is only the loss of confidence by the management and accordingly, by note dated 26.5.2010, the petitioners case was forwarded to the Chairman and Managing Director for consideration, who found that the petitioner had failed to ensure compliance of mandatory duties and therefore, he decided to terminate the services of the petitioner by exercising his power under regulation 13(a).
j) The Board of Directors of the company, in the meeting held on 25.7.2010, after thorough examination of the case, ratified the action of the management to terminate the services of the petitioner. It is stated that at the time of termination on 26.5.2010, no conciliation proceedings were pending and therefore, the question of violation of section 33(1) of the Industrial Disputes Act does not arise and the strike itself is said to be illegal.
k) It is stated that if the petitioner claims himself to be a workman under the Industrial Disputes Act, it is for him to work out his remedy under the Industrial Disputes Act by letting in evidence. It is stated that the Supreme Court upheld, the validity of regulation 13 and the subsequent clarification dated 7.3.2007 as reported in Indian Airlines v. Prabha D.Kanan [(2006) 11 SCC 67]. l) It is true that 9 Engineers were reinstated after they realized their mistake and stated that they had participated in the illegal strike on the basis of ill-advice and tendered apology and there is no question of violation of Article 14 of the Constitution of India. Therefore, according to the respondents, it is a case of loss of confidence, which has resulted in the passing of impugned order.
5. The main contention of the learned senior counsel for the petitioner Mr.R.Subramanian, is that the impugned order, on the face of it, is based on certain misconduct and in such circumstances without conducting any enquiry, the order was passed and therefore, it is opposed to the principles of natural justice. He would also submit that the order was passed in terms of regulation 13 of the Indian Airlines Employees Service Regulations and it is not open to the respondents to invoke such powers. It is his submission that most of the employees who were terminated along with the petitioner were taken back and the petitioner has been singled out and that discrimination is violating Article 14 of the Constitution. It is his case that the petitioner joined on 1.11.1980 and he was a Aircraft Engineer till 1.4.2007. It is his submission that the conciliation proceedings were pending at the time of issuance of the impugned order and therefore, approval should have been obtained as per section 33(1) of the Industrial Disputes Act. To substantiate his contention that regulation 13 is not applicable, he would rely upon the judgment of the Supreme Court in Indian Airlines Ltd., vs. Prabhad D.Kanan [(2006) 11 SCC 67]. He would also rely upon the judgment in M.Thanikachalam and others vs. Madhuranthakam Agricultural Producers Co.operative Marketing Society and others [2000 (4) CTC 556 (FB)] to the effect that the jurisdiction of this Court under Article 226 of the Constitution is not ousted by virtue of section 11A of the Industrial Disputes Act. According to him, there was no charge memo issued and no charge was framed and no allegation of misconduct was made and therefore, there is no question of conciliation proceedings, by relying upon the judgment in Satwati Deswal vs. State of Haryana and others [2009) 8 SCJ855], apart from the judgment in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and others [(1998) 8 SCC 1]. He would distinguish the judgment referred to by the learned counsel for the respondents in A.P.Foods vs. S.Samuel and others[(2006) 5 SCC 469] by contending that it was in respect of the award passed under Bonus Act, after appreciation of evidence.
6. On the other hand, it is the contention of Mr.N.G.R. Prasad, learned senior counsel for the respondents that the Regulations apply to the employees who were appointed before 1984 and the petitioner being an employee appointed before 1984, the Regulations are applicable to him. He would rely upon the judgment in Air India vs. Union of India and others [(1995) 4 SCC 734]. According to him, if the petitioner claims to be a workman under the Industrial Disputes Act, it is for him to raise a dispute before the appropriate forum. He would submit that the applicability of section 33(1) of the Industrial Disputes Act does not arise since there was conciliation on 26.5.2010, at the time when the impugned order was passed and in any event, whether conciliation proceedings are pending or not is a question of fact which cannot be decided by this Court under Article 226 of the Constitution of India. He would submit that inasmuch there is no misconduct imputed on the petitioner, regulation 13(a) would apply and he would rely upon the judgment of the Supreme Court in Essorpe Mills Ltd., vs. Presiding Officer, Labour Court and others [(2008) 7 SCC 594]. It is his case that the Board has ratified the conduct of the respondents and therefore, there is no arbitrariness. He would rely upon the judgment in A.P.Foods vs. S.Samuel and others [(2006) 5 SCC 469] to substantiate his contention that the petitioner can make good, if he is really having any right by raising a dispute under the Industrial Disputes Act and he would also rely upon the judgment in The workmen of M/s.Direstone Tyre and Rubber Co., of India (Govt.) Ltd., vs. The Management and others [(1973) 1 SCC 813].
7. After hearing the learned senior counsel for the petitioner and the respondents, the question that has to be decided is, as to whether the Indian Airlines Employees Service Regulations are applicable to the petitioner. While it is the case of the respondents that the petitioner was appointed before 1984, the Regulations are applicable. The petitioner, as it is seen in his affidavit, was appointed in 1980. Under regulation 13(a) of the Indian Airlines Employees Service Regulations which is as follows:
13(a). The services of an employee may be terminated without assigning any reason to him/her and without any prior notice but only on the following grounds not amounting to misconduct under the Standing Orders, namely:
(i) If he/she is, in the opinion of the Company (the Board of Directors of Indian Airlines) incompetent and unsuitable for continued employment with the Company and such incompetence and unsuitability is such as to make his/her continuance in employment detrimental to the interest of the company. OR
if his/her continuance in employment constitutes, in the opinion of the Company (the Board of Directors of Indian Airlines), a grave security risk making his/her continuance in service detrimental to the interests of the Company.
OR
if in the opinion of the Company (Board of Directors in Indian Airlines) there is such a justifiable lack of confidence which having regard to the nature of duties performed, would make it necessary in the interest of the Company to immediately terminate his/her services. The applicability of the above said regulation lies in the opinion of the company viz., Board of Directors of Indian Airlines under any one of the circumstances mentioned therein. Admittedly, under the impugned order which is stated to be a communication, is a direction and not a opinion, to terminate the services of the petitioner under regulation 13(a).
8. In the impugned order, as found in the typed set of papers filed by the respondents, the Chairman and Managing Director of the respondent company on 26.5.2010 passed the following remarks:
The representatives of All India Aircrafts Engineers Association Shri Y V Raju G.S. And Shri Usgaonkar, S.L., President attended and submitted that the letter dt.24.5. Issued to the G.S. Of the union should be withdrawn as the same tantamount to taking away the right of the unions to freedom of speech. The representative of the management Smt.Bhandari ED(I.R) and Smt.Saran Dy.Gm(I.R) submitted that it was only a communication from the management which do not warrant action like strike without notice in a public utility services and as the union should call off the strike. The representative of the trade union have submitted that the management of AI have taken action against the office bearers and members of the trade union during the pendency of conciliation proceedings which is not only illegal but also highly provocative in a situation like this. The members would be put under tremendous stress strain affecting the human factor involved in the safety. However on the appeal of the Chief Labour Commissioner (Central) and considering the inconvenience of the public, the AIAEA decided to call off the agitation and restore normalcy. CLC(C) informed the union that they can raise the issue of victimizations separately. The representatives of the management welcomed the decision of All India Aircraft Engineers Association to call of the agitation and restore normalcy and requested the union to communicate their decisions to their members located in different regions so that normalcy in flight operation can be restored immediately.
9. The first respondent is a Company, governed by its Articles and Memorandum of Association and one such Article states as follows:
3.6.The Chairman and Managing Director/Managing Director may exercise any or all the powers vested in any Executive/Officer of the Company subordinate to him. The Chairman and Managing Director/Managing Director shall also have the administrative jurisdiction over all Executives/Officers of the Company subordinate to him as well as the Corporate Functions/SBUs/Stations and establishments of the Company. Therefore, the impugned communication can be said to be passed on the basis of delegated powers of the Chairman and Managing Director of the company.
10. The contention of the learned senior counsel for the petitioner that there were conciliation proceedings pending and therefore, approval should have been obtained under section 33(1) of the Industrial Disputes Act may not be correct on facts, since it is stated that the conciliation started only afterwards. It is the case of the petitioner that the Service Regulations have come into existence in the year 1983 and the petitioner entered in service in the year 1980 and hence, the Service Regulations are not applicable to him. It is seen that as against the order of the second respondent dated 26.5.2010, the petitioner made an appeal to the Chairman and Managing Director on 16.6.2010, in which no orders have been passed till date, as it is stated by the petitioner.
11. On the face of it, I am satisfied that as per the directions of the Chairman and Managing Director, the second respondent has not chosen even to mention the grounds for invoking the regulation 13(a). Even assuming that the respondents have the power to invoke Indian Airlines Service Regulations, the minimum requirement of the principles of natural justice contemplates the disclosure of the grounds under which the regulation 13(a) has been involved and the same is not available in the impugned order. Therefore, instead of driving the parties to go to Labour Court or any other forum, inasmuch as substantial appeal has been filed to the Chairman and Managing Director and taking note of the fact that under similar circumstances, orders were passed in favour of some other Engineers, I am of the considered view that the Chairman and Managing Director of the respondent company, viz., the first respondent herein, must be directed to dispose of the appeal filed by the petitioner on 16.6.2010.
Accordingly, the writ petition stands disposed of with direction to the first respondent to dispose of the appeal filed by the petitioner on 16.6.2010 within a period of eight weeks from the date of receipt of a copy of the order, making it clear that in the meantime, the interim order already passed shall be in operation subject to the final order passed by the first respondent and it is open to the first respondent to pass appropriate consequential orders. No costs. Connected miscellaneous petitions are closed.