Bombay High Court
Saudi Arabian Airlines vs The General Secretary ,Saudi Arabian … on 13 November, 2024
2024:BHC-AS:43678
Neeta Sawant WP-3547-2021-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3547 OF 2021
WITH
INTERIM APPLICATION NO. 12633 OF 2023
WITH
INTERIM APPLICATION NO. 12634 OF 2023
WITH
WRIT PETITION NO. 3548 OF 2021
WITH
INTERIM APPLICATION NO. 12632 OF 2023
WITH
INTERIM APPLICATION NO. 12635 OF 2023
Saudi Arabian Airlines } ....Petitioner
: Versus :
The General Secretary,
Saudi Arabian Airlines Employees
Association }....Respondent
_____________
Mr. Sudhir Talsania, Senior Advocate with Mr. Vishal Talsania, Ms.
Shalaka Patil, Ms. Shilpa Sengar and Mr. Soham Banerjee i/by. Trilegal,
for the Petitioner in both the petitions.
Mr. R.V. Govilkar, Senior Advocate with Ms. Shaba N. Khan, for the
Respondent in 3548/2021.
Mr. Iqbal S. Siddiqui, for Respondent in Writ Petition No. 3547/2021.
______________
CORAM : SANDEEP V. MARNE, J.
RESERVED ON : 21 OCTOBER 2024.
PRONOUNCED ON : 13 NOVEMBER 2024.
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JUDGMENT :
A. THE CHALLENGE 1) These petitions are filed by the Petitioner-Airline
challenging the Awards passed by the Central Government Industrial
Tribunal, Mumbai (CGIT) on 25 November 2019 in Reference CGIT
No.2/70 of 2013 and on 12 December 2019 in Reference CGIT
No.2/59 of 2013. By both the Awards, the CGIT has set aside the
termination of ten members of the Respondent-Union and has
directed their reinstatement with full backwages and continuity of
service. Petitioner claims that it is required to close its security
functions/department at Mumbai Airport on account of directions
issued by the Bureau of Civil Aviation Security (BCAS), which has
led to retrenchment of services of its 10 Security Controllers. The
CGIT has held that the security department was never directed to be
closed by the BCAS and has accordingly held retrenchment of the 10
employees as illegal, directing their reinstatement with continuity and
full backwages.
B. FACTS 2) Petitioner is a foreign airline operating in India and is
engaged in the business of international air transport. It is fully
owned by the royal family of the Kingdom of Saudi Arabia.
Respondent is an Employees’ Association representing the cause of
10 terminated employees. Members of the Respondent-Union were
working with the Petitioner-Airline as Security Controllers. The
employees, whose cause Respondent-Union espouses, were handling
security functions of Petitioner-Airline at Mumbai airport. Those
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employees held certification of Aviating Security Training conducted
at BCAS.
3) Air transport in India is controlled and governed by the
provisions of the Aircraft Act, 1934, under which the Central
Government is empowered to frame Rules, establish regulatory
bodies, appoint regulatory authorities, issue directions and generally
take all appropriate actions that are necessary for safety and security
relating to airline industry, which includes safety aspects at the
airport, security functions of the air transport companies at the
airport etc. The directions issued by the Central Government and its
regulatory authorities are required to be complied with by air
transport companies operating in India, including the foreign airlines.
In exercise of powers under the provisions of Aircraft Act, 1934, the
Aircraft (Security) Rules, 2011 have been formulated dealing with
safeguard of civil aviation against the acts of unlawful interference.
Under the Rules, Commissioner of Security (Civil Aviation), Bureau
of Civil Aviation Security, Ministry of Civil Aviation is entrusted
with various powers, duties and functions for taking necessary steps
for ensuring security measures of Civil Aviation. The Rules deal with
security measurements at aerodromes, aerodromes access control,
pre-embarkation security checks, security measures by aircraft
operators, catering supplies and stores and security
accidents/incidents.
4) Commissioner of Security (Civil Aviation), BCAS issued
AVSEC Order No. 3 of 2009 dated 21 August 2009 directing the
enlisted activities pertaining to the aircraft operations to be treated as
‘Aircraft Operators’ Aviation Security Functions’. BCAS directed that
the enumerated security functions could not be mixed up with other
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ground handling activities and that the security functions should not
be allowed by an Aircraft Operator/Airport Operator to be
undertaken by a ground handling agency. AVSEC Order No.3/2009,
inter-alia permitted a foreign airlines to enter into an agreement with
Indian Air carriers having international operations. On 29 October
2009, BCAS issued AVSEC Order No. 5/2009 for implementation of
report of the Committee constituted by Ministry of Civil Aviation for
suggesting the norms for deployment of security staff to undertake
security functions. Accordingly, various directions were issued by
AVSEC Order No.5/2009.
5) It appears that Petitioner was performing self-handling of
security functions at Mumbai Airport and had set up its own security
department and the concerned 10 employees were performing
security functions of the Petitioner-Airline in their capacity as
Security Controllers. It appears that Petitioner was required to get its
security programme for Mumbai Airport approved from BCAS.
Accordingly, by letter dated 6 May 2012, security programme of
Petitioner-Airline was submitted for approval to BCAS. According to
the Petitioner on 9 May 2012, Mr. Umesh Parulekar, one of the
affected employees and also office bearer of the Union, attended the
meeting with the officials of BCAS to obtain clearance for its security
programme. The BCAS however refused to approve Petitioner’s
security programme for Mumbai Airport and returned the same by
letter dated 17 May 2012. One of the reasons for rejection of the
programme was that foreign airlines was not permitted to do self-
handling of security functions. Petitioner was accordingly advised to
enter into a contract with Indian Air Carrier having international
operations from that airport.
Page No.4 of 67 13 November 2024 ::: Uploaded on - 14/11/2024 ::: Downloaded on - 15/11/2024 00:36:03 ::: Neeta Sawant WP-3547-2021-FC 6) By notice dated 30 April 2013, it appears that Voluntary
Severance Scheme (VSS) was introduced in the wake of direction
given by BCAS not to indulge in self-handling of security functions
by the Petitioner and for entering into contract with Indian Air
Carrier for handling of security functions. A demand notice was
served by the Respondent-Union on 10 May 2013 to the Petitioner for
not inducting any persons from other entity or to carry out any work
or operation performed by the permanent employees. On 16 May
2013, conciliation application was filed by Respondent-Union
alongwith Statement of Justification under the provisions of the
Industrial Disputes Act, 1947 (ID Act) before the Assistant Labour
Commissioner, Central (Mumbai). In the above background,
Petitioner submitted a fresh security programme for approval to
BCAS after entering into arrangement with M/s. Air India and Jet
Airways for handling security services at Mumbai Airport. The letter
dated 20 June 2013 stated that in respect of Airports at Delhi,
Cochin, Hyderabad and Chennai, Petitioner had already made
arrangements with Jet Airways for handling security functions.
7) On 16 May 2013, another letter was issued by BCAS to
the Petitioner-Airlines on the basis of observations made during the
course of security audit of Mumbai airport conducted by the team of
officials of BCAS from 2nd to 5th April 2013 and Petitioner was
communicated the deficiencies in security arrangements. One of the
deficiencies communicated by letter dated 16 May 2013 was that the
airline was performing self-handling of security functions (except
Cargo by Air India Security), which was construed as violation of
AVSEC Order No.3/2009 and AVSEC Order No.5/2009. Petitioner-
Airline was therefore directed to take corrective measures. It appears
that the Petitioner was mulling an arrangement with M/s. Jet
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Airways (I) Ltd (Jet Airways) for contracting out the security
functions as directed in the communications dated 17 May 2012 and
16 May 2013. The Respondent-Union served a legal notice dated 28
June 2013 on Jet Airways calling it upon to refrain from entering into
any arrangement with Petitioner-Airline in respect of Mumbai
Airport. It appears that 10 security staff, who had filed applications
for VSS withdrew the same.
8) In the above background, Petitioner terminated services
of three employees, Umesh Parulekar, Rizwanakther M. Patel and
Mohd. Naeem Buddha by letter dated 4 July 2013 mentioning the
reason of substantial reduction in workload of security activities,
especially in cargo section for a long period of time. The employees
were paid sums towards notice pay and retrenchment compensation.
9) BCAS however once again rejected Petitioner’s Security
Programme by letter dated 19 July 2013 again citing the reason of
Petitioner’s staff performing handling of security functions (except
cargo handling security) which in violation of AVSEC Order
No.3/2009 and 5/2009. Petitioner addressed letter dated 20 August
2013 to BCAS intimating it about the steps taken for ensuring
handling of security functions through Jet Airways. BCAS granted
permission to Petitioner to provide security services by Jet airways at
Mumbai Airport by letter dated 5 September 2013. According to
Petitioner, the security programme was approved only after it handed
over security functions to Jet Airways. Petitioner accordingly closed
down its security department at Mumbai Airport and published
notice of closure on 16 September 2013. Accordingly, services of 7
employees came to be terminated on 16 September 2013 by paying
them notice wages and closure compensation.
Page No.6 of 67 13 November 2024 ::: Uploaded on - 14/11/2024 ::: Downloaded on - 15/11/2024 00:36:03 ::: Neeta Sawant WP-3547-2021-FC 10) Respondent-Union, together with the terminated
employees, filed Writ Petition No.2679 of 2013 before this Court
challenging, inter-alia directions issued by BCAS vide AVSEC Order
No. 3/2009 dated 21 August 2009, as well as BCAS’ letter dated 17
May 2012. Respondent-Union and terminated employees also
challenged approval granted by BCAS to the contract signed between
Petitioner-Airline and Jet Airways. It appears that Writ Petition was
subsequently dismissed for want of prosecution on 30 September
2014, possibly because the Respondent-Union and terminated
employees decided to pursue the challenge to the termination order.
Accordingly, Respondent-Union filed Writ Petition No. 1746/2013
challenging the termination of three employees, Umesh Parelukar,
Rizwanakther and Naeem Buddha. However, by that time, Reference
under Section 10(1) of the Industrial Disputes Act was already made
and accordingly this Court relegated Respondent-Union and
terminated employees to remedy before the Industrial Court.
11) On 6 December 2013, two References were made by the
appropriate Government to CGIT which were registered as Reference
CGIT No. 2/59 of 2013 and Reference CGIT No.2/70 of 2013. The
References were in respect of the termination of services of the 10
employees.
12) In the References, Respondent-Union filed Statement of
Claims which was resisted by the Petitioners by filing Written
Statement. Petitioner examined Adil Khan as its witness in Reference
CGIT No.2/70 of 2013. On behalf of Respondent-Union, Mr.
Rizwanakther M. Patel was examined as a witness in Reference
CGIT No.2/59 of 2013 and Mr. Umesh Parulekar was examined in
Reference CGIT No.2/70 of 2013. During the pendency of the
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References, Respondent-Union filed application for interim reliefs for
demand of wages. However, no interim relief was granted in their
favour.
13) The Tribunal passed Award in Reference CGIT No.2/70
of 2013 on 25 November 2019 quashing and setting aside termination
orders of seven employees and directed their reinstatement with full
backwages and continuity of service. The Tribunal passed separate
Award in Reference CGIT No.2/59 of 2013 on 12 December 2019
directing reinstatement of three employees with full backwages and
continuity of service.
14) Petitioner has filed Writ Petition No.3547/2021
challenging Award in Reference CGIT No.2/59 of 2013 (relating to
three terminated employees) and Writ Petition No. 3548/2021
challenging the Award in Reference CGIT No.2/70 of 2013 (relating
to termination of 7 employees). By order dated 26 February 2021,
this Court admitted the petitions and stayed the effect and operation
of the Awards subject to Petitioner depositing full backwages within a
period of 8 weeks. Respondent was also granted liberty to file
application under the provisions of Section 17B of the Industrial
Disputes Act, 1947 (I. D. Act) for payment of wages. Accordingly,
Respondent filed Interim Application Nos. 859 and 860 of 2021
seeking wages under Section 17B of the Industrial Disputes Act. By
order dated 5 January 2022, this Court directed the Petitioner to
deposit last drawn wages of the terminated employees for a duration
of two months and the Respondent was granted liberty to withdraw
50% of the deposited amounts without any condition. Later, order
dated 8 September 2022 was passed by this Court permitting the
Respondent to withdraw balance 50% of the amounts deposited in
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the Court towards last drawn wages. On 12 October 2022, this Court
allowed applications filed by Respondents for payment of wages
under the provisions of Section 17B of the I.D. Act. Interim
Application Nos. 12632 and 12635 of 2023 are filed by Respondent
alleging short payment of last drawn wages and backwages which are
pending. The petitions are called out for final hearing.
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
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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.
16) Mr. Talsania would further submit that it is a managerial
discretion of an employer to organize and arrange his business in a
manner he considers best. That so long as the decision is bonafide, it
is not competent for the Tribunal to question its propriety. That if
scheme or reorganization results in surplusage of employees, no
employer is expected to carry the burden of such economic dead-
weight and that retrenchment has to be accepted as inevitable. That it
is not the function of the CGIT to go into the issue as to whether
such a scheme is profitable or otherwise and whether it should be
adopted by employer or not. That in the present case, Petitioner was
statutorily constrained not to self-handle security functions resulting
in rendering the security personnel surplus. That the CGIT erred in
appreciating this position and misdirected itself by going into the
issue as to whether BCAS directed closure of security department or
not. Mr. Talsania would rely upon judgment of the Apex Court in
Parry and Co. Ltd Versus. P. C. Pal, Judge of the Second Industrial
Tribunal, Calcutta and Others.1 in support of his contentions that it is
the prerogative of the Management to arrange its business as best
1
AIR 1970 SC 1334
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suitable to it and the Tribunal cannot direct as to how employer
should carry out its own business.
17) Mr. Talsania would submit that the CGIT has erred in
holding that there was no reduction in workload on account of
Petitioner outsourcing security activities without appreciating that the
decision to outsource security functions was forced by BCAS on the
Petitioner. That CGIT has erred in holding that there could not be
reduction in the workload on account of increase in number of
flights, without appreciating that the reduction of workload was a
result of directions issued by BCAS, having no connection with the
number of flights. That the CGIT erred in observing that new
personnel were recruited at other Airports in violation of Section
25(4) of the I.D. Act without appreciating the position that
Respondent-Workmen were employed at Mumbai Airport where
Petitioner was prohibited from self-handling of security functions.
That the CGIT has erred in concluding that Petitioner has not
complied with the provisions of the ID Act while terminating three
employees in July 2013 without appreciating the position that non-
compliance with the provisions of the I.D. Act was inconsequential in
the light of subsequent shutting down of the Security Department as
per Notice of Closure issued in prescribed format to the Central
Government. That the CGIT erred in equating security functions
with self-handling of security functions and further erred in
interfering presence of security functions on the strength of Petitioner
deploying supervising security officer and retaining security control
room.
18) Mr. Talsania would further submit that directions of
CGIT to reinstate Respondent-employees would put unnecessary
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burden on Petitioner as the Security Department at Mumbai no
longer exists and no posts are available for continuing the services of
the concerned employee. To counter the submission about
termination of three employees during conciliation proceedings,
Mr. Talsania would submit that the conciliation proceedings were in
respect of an altogether different demand and not in respect of the
termination. He would rely upon judgment of the Apex Court in L.
Robert D’souza Versus. Executive Engineer, Southern Railway and Anr.2
in support of his contention that termination during conciliation
proceedings does not amount to change in conditions of service
within the meaning of Section 33 (2)(b) of the Industrial Disputes
Act. Mr. Talsania would submit that the issue about validity of
closure was not referred to the CGIT and that therefore of services of
Respondent could not be called in question. Mr. Talsania would
therefore pray for setting aside the impugned awards.
19) Mr. Govilkar, the learned senior advocate appearing for
the Respondent-Union in Writ Petition No. 3548 of 2021 representing
seven terminated employees would submit that the learned CGIT has
not committed any gross or palpable error while passing the
impugned Award setting aside termination of the seven employees
and that therefore no interference is warranted in exercise of writ
jurisdiction by this Court in well-reasoned Award passed by the
CGIT. He would submit that the CGIT has rightly arrived at a finding
that the Petitioner-Airline was never directed to close down its
security department. That the Tribunal has recorded a finding of fact
after appreciation of evidence that the Security Department is still
functional as Petitioner-Airline has not only continued presence of
Security Supervisor, as well as, Security Cabin at Mumbai Airport,
2
(1982) 1 SCC 645
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but has recruited several other personnel in the Security Department.
Mr. Govilkar would submit that the two letters of BCAS have
deliberately been misinterpreted and misused by Petitioner-Airline for
discontinuation of services of the employees. That closure has not
been effected in accordance with the provisions of law. That in fact,
there is no closure of Security Department as several other staff are
continued and freshly recruited in the Security Department.
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
3
(2020) 14 SCC 345
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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
4
(2022) 9 SCC 586
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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
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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.
22) Mr. Siddiqui would submit that termination was illegally
effected during pendency of conciliation proceedings. That there is a
clear violation of provisions of Section 25F (c) of the ID Act, as well
as Rule 77 of the Industrial Disputes Central Rules, 1957 (Central
Rules) since seniority was not followed at the time of retrenchment.
Closure notice to appropriate government was not issued under
Section 25FFA of the Industrial Disputes Act. He would rely on the
judgment of the Apex Court in Mackinnon Mackenzie and Company
Limited Versus. Mackinnon Employees Union5.
23) Mr. Siddiqui would take me through cross-examination
of the management witness highlighting the admission that there was
no specific order from BCAS to close down the Security Department.
He would submit that the said witness also admitted that Mumbai
staff was allocated duties to other stations, which was done in the
year 2013 also to perform duties other than security duties. That it
5
(2015) 4 SCC 544
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was easily possible for the Petitioner-Airlines to adjust the terminated
employees for performing duties other than security duties.
Mr. Siddiqui would rely upon reply received under the Right to
Information Act, 2005 from BCAS stating that it is mandatory for
foreign airline to appoint Chief Security Officer of Security
Coordinator. He would invite my attention to result of Aviation
Security Basic Exam held on 23 March 2015 where Security
Coordinator of Petitioner-Airline, posted at Cochin, has cleared the
said examination. He would submit that if foreign airlines were not
supposed to undertake any security functions, why training is
imparted to Security Coordinator by Petitioner-Airline in the year
2015 is not explained in any manner. He would also rely upon letter
issued Mr. Shahid Qureshi on 30 January 2015, Customer Services
Agent Level-III directing him to handle additional duties of Security
Coordinator at Mumbai station with a promise that Petitioner would
provide training in BCAS courses to carry out the said duties. He
would also rely upon letter dated 20 June 2013 submitted by
Petitioner for approval of Security Programme showing that Munaf
Shaikh, Security Representative and Mr. Shahid Qureshi, Security
Controller were retained at Mumbai Station. He would thus submit
that several security related functions are still being performed by
Petitioner-Airline. Mr. Siddiqui would pray for dismissal of the
petition.
D. REASONS AND ANALYSIS 24) Present petitions involve the issue of correctness of two
Awards dated 25 November 2019 and 12 December 2019 passed by
CGIT in Reference No. CGIT-2/70 of 2013 (relating to termination
of seven employees) and Reference No.CGIT-2/59 of 2013 (relating
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to termination of three employees) respectively. All the ten employees
were functioning as Security Controllers in Petitioner-Airlines. The
three employees viz. Rizwanakther M. Patel, Umesh Parulekar and
Mr. Naeem Buddha were first terminated on 4 July 2013 when
closure notice was not issued and the reason for their termination is
indicated as substantial reduction in workload of security activities
especially in Cargo Section for a long period of time. Seven
additional Security Coordinators, Mr. Thomas Vincent, Mr. Rajeev
Mampuzha, Mr. Sunil Fakirchand Salve, Mr. Rajesh Brijbhushan
Sharma, Mr. Devanand M. Ingale, Mr. Abdul Rahim Ansari and Mr.
Syed Jari A. Jaffri were terminated simultaneously with issuance of
Closure Notice dated 16 September 2013. It appears that notice to the
Secretary of the Government of India, Department of Labour and
Employment, New Delhi was issued by the Petitioner-Airlines on
16 September 2013 under Section 25FFA of the ID Act giving
information about closure of Security Section/Department.
25) The Appropriate Government made following References
on 18 October 2013 and 6 December 2013 to CGIT under the
provisions of Section 10 of the ID Act :
“Whether the action of the management of M/s. Saudi Arabian
Airlines, Mumbai in termination of services by way of
retrenchment of Mr. Razwanakhtar M. Patel, Mr. Mohd. Naeem
A. Buddha and Mr. Umesh M. Parulekar, Security Controllers vide
letter dated 04.07.2013 is legal and justified ? To what relief the
workmen concerned are entitled to ?”
AND
“Whether the action of the management of M/s. Saudi Arabian
Airlines, Mumbai in terminating the services of Mr. Thomas G.
Vincent, Mr. Rajeev Mamphuzha, Mr. Sunil F. Salve, Mr. Rajesh B.
Sharma, Mr. Devanand L. Ingale, Mr. Abdul Rahim Ansari, Mr.
Sayed Jari Abbas, Ex Security Controllers w.e.f. 16.09.2013 is legal
and justified ? To what relief the workmen concerned are entitled
to ?”
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26) The CGIT has allowed both the References by setting aside the
termination letters/orders dated 4 July 2013 and 16 September 2013
with further direction to the Petitioner to reinstate the concerned
workmen to their original posts with full backwages, continuity of
service and all consequential benefits from the dates of their
termination. Correctness of the Awards passed by the CGIT is being
questioned by the Petitioner-Airlines in the present petitions.
27) Though there is slight difference between the reasons
stated in the termination of first set of three employees than the one
reflected in the termination letters of seven subsequently terminated
employees, the actual reason for termination as pleaded by Petitioner
in its Written Statement for both set of employees is prohibition
imposed by BCAS from self-handling of security functions at
Mumbai Airport. There is no dispute to the position that all the ten
terminated employees were working as Security Controllers at
Mumbai Airport. Petitioner has contended that since it was forced to
contract out security functions to Jet Airways, it decided to close the
Security Department and was required to retrench the services of the
ten Security Controllers.
D.1 FINDINGS OF CGIT 28) Therefore, the moot question that arose before CGIT, and
which again arises for consideration of this Court, is whether any
prohibition was imposed by BCAS on performance of self-handling
of security functions by Petitioner-Airlines ?
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29) After considering the entire evidence on record, CGIT
has arrived at a finding that BCAS had not issued any direction to the
Petitioner to close its Security Department. CGIT has also not
believed the defence of Petitioner that any restriction was imposed by
BCAS on self-handling of security functions. CGIT has also taken
into consideration instructions of Gulf Airways for doing self-
handling of security functions. It would be apposite to reproduce the
relevant findings recorded by CGIT for refusing to accept defence of
Petitioner about prohibition imposed by BCAS on performance of
self-handling of security functions :
27. So far termination of order is concerned, it reads that
“pursuant to the directions of BCAS we are not authorized to carry
out the security functions at the International airport, Mumbai
therefore we have closed the security section/dept. at Mumbai
airport, consequently your services stands terminated with effect
from closing hours of 16.09.2013.”
28. In view of this, it is to be seen whether the first party has closed
down security section/dept. at Mumbai airport. Section 2 (cc) of
the I.D. Act defines ‘closure’ as permanent closing down of the
place of employment or part thereof. Whether closure means
closure of business all together or merely closure of an undertaking
or any manufacturing process but the business continued, also
amounts to closure ? In the decision in case of M/s. Biddle Sawyer
Ltd., Dr. Annie Besant Road, Worli, V/s. Chemical Employees’
Union and Ors.- WP No. 427/2006, it has been held the closure
would really mean the permanent closure of place of employment
or part thereof and the same could never mean only place of
employment. A place of employment means a place which
generates employment or where the business is carried and the
same should not be construed in a superficial manner to indicate
only building or factory.
29. In the facts of the present case, it is no doubt true that AIC, SL
No. 3/2013 Ex. 19 clause No. 4.1 and 4.2 provide in a mandatory
manner that BCAS shall have power to impose restrictions on
grounds of security upon airlines and allied agency as may be
deemed necessary and that all are duty bound to follow the
directions issued by BCAS from time to time.
30. In this respect it is the case of the first party that BCAS
imposed restriction upon foreign airlines that there should be no
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the said function must be carried out by the airlines approved by
BCAS. Saudi Arabian Airlines was self handling security functions,
the workmen concerned were performing said security functions.
Thus due to aforesaid restriction by BCAS the said concerned
workmen could not be deployed for self handling security
functions. The question is whether BCAS has passed any order or
directions to the first party to stop its security functions and not to
do the security functions by keeping/retaining its own security
personnel?
31. In this respect, MW-1 Adil Khan in his oral testimony during
his cross examination has stated that there is no specific order from
BCAS to close down the security dept. Ex.25 is the reply given to
RTI query obtained by second party and in response to RTI query
on behalf of the second party, Govt. of India/BCAS has replied
vide letter No. CAS -7 (35)/2010 dt. 26.9.13 that no direction has
been given to M/s. SAA to close down its security dept. It is thus
clear that there is no specific directions from BCAS to the first
party to close down its security dept.
32. In view of that the first party has come out with a case that it
was necessary for S.A.A. to get their security programme approved
by BCAS from time to time. On 9.5.12 Mr. Umesh Parulekar one
of the workman concerned was sent for attending security
programme meeting with officials of BCAS at Delhi for obtaining
approval of security programme of the company and the said
security programme was not approved substantially due to
company continuing with self handling of security functions. It is
then contention of the first party that BCAS issued the letter dt.
17.5.12 [Ex.19] to the company wherein by para-5 the company
security programme was rejected due to self handling of security
functions in violation of AVSEC order No. 3/2009 and AVSEC
order No. 5/2009, further advising that airlines may enter into
contract with Indian carriers having international operations from
that airport.
33. So far as AVSEC order No. 3/2009 [Ex.19 is concerned, the
said order delineated the areas of security functions to be carried
out by aircraft operators/first party which include any other
security functions notified by the Commissioner from time to time.
Clause 7 of the order provides that “The responsibility for all
security related functions shall be with the airlines concerned. For
this purpose a security coordinator shall be designated by the
respective airlines at each airport from where they shall have
operations.”
34. Importantly, para 2 of the said AVSEC order 03/2009 provides
that, “Keeping in view the AVSEC requirements under current
surcharged security scenario, these AVSEC functions cannot be
mixed up with other ground handling activities, and these AVSEC
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functions shall not be allowed by an Aircraft Operator/Airport
Operator to be undertaken by a Ground Handling Agency.”
35. Para 3 of the said AVSEC order 03/2009 further provides that,
“The above mentioned security functions shall be carried out by the
concerned airlines’ security personnel who possess all competencies
required to perform their duties and are appropriately trained and
certified according to the requirements of the approved Security
Programme of respective Aircraft Operator and the National Civil
Aviation Security Programme of India.”.
36. So far AVSEC order 05/2009 is concerned, it provided for
reviewed norms for deployment of airlines security staff to
undertake security functions. The said order is in force even today
and related mandatory provisions are; Clause [A] – Provides that
airlines must have Chief Security Coordinate. Clause (B) provides
for deployment of officers of the airlines Security Department of
suitable seniority at various stations for effective security
supervision and implementation. Clause (E) provides that each
airline should establish a Security Control Room to coordinate all
security functions and should be manned during its operations by
one or more security personnel. Clause [F] provides for
deployment of security personnel at different security positions for
the airlines including foreign airlines. Clause [G] provides that the
Security Supervisor shall ensure that Aircraft Release Certificate
signed by all the concerned departments and signature is to be
obtained from the Commander of the flight.
37. It was for the first party to ensure the compliance of the above
orders and as such vide letter dt. 31.12.14 BCAS directed the first
party to give undertaking that the first party will comply with all
the BCAS orders/circular in particular AVSEC order 05/2000 and
accordingly the first party has given the undertaking to the Govt. of
India. MW-1, in Ref. No. CGIT-2/59 of 2013 has admitted this
fact. It appears therefore that since the first party has not complied
the mandatory directions of BCAS for compliance of AVSEC
order 05/2009 its security programme was not approved. That does
not mean that BCAS imposed restrictions upon the first party on
the grounds of security functions since the fact remains that the
security programme of the first party for Mumbai station was
approved by BCAS vide their letter dt. 31.12.14 whereby the BCAS
has taken specific undertaking for compliance of all Govt./BCAS
orders and circulars, However, that undertaking is given by the first
party after termination of the services of second party workmen.
38. Even then the Learned Counsel for the first party submitted
that on 22.5.12 Mr. Umesh Parulekar attended the meeting with
BCAS officials for approval of the security programme but
company security programme was rejected and from 2nd to 5th April
’13 BCAS conducted security audit in company at Mumbai Airport
and once again rejected the security programme of the company
substantially because company had continued with self handling
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security functions being violation of AVSEC order No. 03/2009
and 05/2009. Submission is to the effect that by letter dt. 19.7.13
(Ex.26), the BCAS intimated to the company that its security
programme is not approved because company conducted self
handling of security functions in violation of aforesaid AVSEC
orders and called upon the company to take corrective measures
within the period of 30 days under intimation to BCAS to preclude
the possibility of unlawful interference that Civil Aviation
operations and thereafter by notice dt. 16.9.13 in the light of ban
on self handling security functions the company closed security
dept. at Mumbai airport as it had discontinued the airport security
functions.
39. So far this submission is concerned, it can be said that none of
the government orders / circulars or instructions stopped or
prohibited the first party to do the security functions at airport by
keeping own employees. BCAS letter dt. 17.5.12 (Ex.19) shows
that BCAS returned the security programme for the reasons stated
therein including to provide letter about appointment of Chief
Security Officer as per clause-6 of the letter. Accordingly, BCAS
directed the first party to resubmit the security programme.
Admittedly, it is mandatory for every airline to have security
coordinator at each station. Even BCAS letter dt. 16.5.13 regarding
security audit at Mumbai airport from 2.5.13 pointed out the
deficiencies in security arrangements of the first party by
observation in para-3 that out of 18 security staff 14 did not have
undergone basic AVSEC. All are due for refresher course. Para-2 of
the said letter mentioned that airline is performing self handling
security functions except cargo by AI security which is in violation
of AVSEC order No. 03/2009 and 05/2009 and the first party was
directed to take corrective measures. Vide said, para-2 it was
pointed out that first party was performing self handling of security
and that first party was doing cargo security by AI and the said was
in violation of AVSEC order No. 03/2009 and 05/2009.
40. Obviously, by above letter dt. 16.5.13 BCAS has no where
directed the first party not to carry out the security functions.
41. As a matter of fact, it can be seen that the first party vide letter
dt. 17.5.13 to Dy. Commissioner of Security, Civil Aviation, Govt.
of India Ex.25 has admitted that the Aircraft Operator Security
Programme was returned to make necessary changes. In para-2 of
the said letter it is stated that SAA has a security dept. in Mumbai
airport performing all security related functions as per National
Civil Aviation Security Programme. Vide letter dt. 17.5.13 the first
party has also submitted in para-3 that it has made prompt
compliance as per BCAS directions vide letter dt. 16.5.13 and sent
for 15 days training and refresher course of its security employees.
If really there was any objection by BCAS for self handling of
security functions by the first party then the first party would not
have sent its security employees for training.
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42. Infact, there is enabling provisions that airline may enter into
agreement with authorized Indian carrier. However, there is no
specific-order, circular, rules providing that foreign airlines are
prohibited or not authorized to do the security functions and that
the airline has to enter into agreement with the Indian carrier. In
the instant case first party had well trained highly experienced
security personnel and as such first party is capable of or
competent to do self handling of security functions. Even MW-1 in
his statement during the cross examination has stated that since
BCAS has quoted order No. 05/2009 dt. 29.10.09, he in his
affidavit has stated that first party is performing self handling
functions in violation of this order. The question therefore creeps in
as to really there was ban on self handling security by foreign
airlines.
43. In this respect, we have document at pg. 156 below list Ex.25 to
show that application was made under RTI 2005 and the
information was sought on the subject if airline can carry on with
its operation at any airport without existence of its own security
dept. and the information given is that the airline is not permitted
to carry on its operation at any airport without existence of its own
security dept. This information was given by Dy. Commissioner of
Security (CA & CPIO). The information was also sought on the
subject if any airline can be allowed to carry on its airline operation
landing aircraft into Indian territory without having its security
programme duly approve by as mandated by law and the
information given is to the effect that no scheduled commercial
airlines is allowed to do so. From this information it is clear that
airline cannot carry on its operation at airport without existence of
its own security dept. For that purpose it has been brought on
record that the first party employed more than 100 employees in
the estt. and carried on security functions since it start of operation
in India in 1970. This is explicit the document filed by the second
party vide Ex. 13 at Pg. No. 66 to 69 and Ex.25 at Pg. 35 to 40.
44. Even it is undisputed position that the concerned workmen
were trained in aviation security functions holding AVSEC
certification of training conducted by BCAS and are competent to
handle any airlines security responsibility and perform any security
functions. In such circumstances when it is mandatory for the
airline that there has to be one security control room at each station
and that every airline to have security coordinators at each station
and then the security programme of the first party got approved by
BCAS vide letter dt. 31.12.14 then it is difficult to accept that there
was complete closure of security functions by first party airline. It
is because there is evidence on record that the first party continued
with his business and security functions/depts. even after 16.9.13 in
as much as the first party addressed letters dt. 15.4.14 to the
Govt./BCAS through its own Chief Security Officer vide Ex.25
and BCAS issued the letter dt. 31.12.14 addressed to Chief Security
Officer regarding approval of security programme of first party
vide Ex. 37 in Ref No. CGIT-2/59 of 2013. The evidence is also
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on record to show that the first party had transferred two security
staff from Mumbai to Delhi in 2004 who were transferred back to
Mumbai due to shortage of security staff. The fact remains
therefore that there was no complete closure of security functions
by first party airline.
45. Even then the Learned Counsel for the first party company
submitted that as per mandatory directions of BCAS the company
had no other option but to engage M/s. Jet Airways India Ltd. for
handling security functions. Submission is to the effect that ban on
self handling security functions by foreign airlines is the policy
decision of the BCAS in accordance with the powers vested in it
and therefore the security dept. in Mumbai was rightly closed.
Submission is to the effect that the company required to retain its
own security personnel for supervising the work of out-source
agencies as ultimate responsibilities of the security functions still
lies upon the company. Hence the company had to retain 2 security
personnel for such supervision and certification to discharge its
obligations.
46. The submission is other way round. As a matter of fact, even
after termination of the second party workmen the first party
appointed security personnel at different stations in India and those
security staff appeared in basic AVSEC examination to clarify the
requirement of BCAS for security functions when on the contrary
the concerned workmen were qualified.
47. If really it would have been a fact that foreign airlines are
banned from carrying out security functions then the BCAS would
not have asked M/s. Gulf Air to do refresher of the permanent
staff which is self handling of security functions. It appears that as
per communication to M/s. Gulf Air vide letter dt. 16.5.13, BCAS
communicated that there was shortage of security staff and that the
permanent security staff needed refresher course and thus directed
M/s. Gulf Air for taking corrective measures. That negates the
contention of the first party that the foreign airlines are banned for
carrying out security functions by BCAS. Precisely, it is also
admitted by MW-1 [Ex.31] in his cross examination that it is
mandatory for every airline to have security coordinators at each
station who according to first party are required to supervise the
work of security functions as ultimately the responsibility of the
security functions lies on the company.
48. Learned Counsel for the second party urged that the
termination of the concerned workmen was pre-meditated since
action was already taken by the first party prior to 16.9.13 which
culminated in termination of the services of the second party
workmen. He pointed out that in 2011 first party engaged M/s.
Celebinas Co. for its ground handling functions. In 2012 first party
handed over cargo security functions to A.I. without permission
from BCAS, in May ’13. First party offered VSS and offered VSS
only to the staff at airport Mumbai. That VSS was applicable only
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to traffic and security staff and loaders and not to any other staff of
any other dept. The first party applied for permission from BCAS
in June ’13 to outsource security and other ground handling
functions to M/s. Jet Airways India Ltd. On 16.9.13 first party
outsourced ground handling to M/s. Jet Airways India Ltd. After
16.9.13 first party made fresh recruitment of the employees
security job without adverting to concerned workmen. Submission
appears probable and acceptable since the fact has come on record
that there was no complete closure of the security functions and
that there was no directions and order from the BCAS to close
down the security functions.
49. In this respect, the Learned Counsel for the concerned
workmen seeks to rely on the decision in case of Mackinnon
Machenzie and Co. Ltd. V/s. Mackinnon Employees Union-
[2015]-4-SCC-544 to submit that statutory provisions containing
section 25 FFA of I.D. Act mandate that company should have
issued the intended closure notice to the appropriate Govt. and
should serve the notice atleast 60 days before the date on which it
intended to close down dept./unit concerned of the company. The
object of serving such notice on the State Govt. is to see that it can
find out whether or not it is feasible for the company to close down
the dept. / unit of the company and whether the workmen
concerned ought to be retrenched from their services made
unemployed and to mitigate the hardship of the workmen and their
family members. Further the said provisions of I.D. Act is a
statutory provisions given to the workmen concerned or prevent the
appellant company from retrenching the workmen arbitrarily,
unreasonably and in an unfair manner.
(emphasis and underlining added)
30) By recording above findings, CGIT has held that BCAS
have neither directed closure of Security Department nor had
imposed any prohibition on performance of self-handling of security
functions by Petitioner-Airlines. CGIT thus considered the following
broad factors for inferring absence of ban on self-handling of security
functions by Petitioner-Airline :
(i) Evidence of Management Witness Adil Khan that no
specific direction was received from BCAS to close the
security department;
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(ii) Reply given to RTI query by BCAS vide letter dated 26
September 2013 that no direction has been given to
Petitioner to close down its security department;
(iii) Rejection of security program at Mumbai Airport was
essentially due to failure on the part of Petitioner to clear
the deficiencies and no restrictions were imposed by
BCAS on handling of security functions;
(iv) AVSEC Orders merely made an enabling provision for
contracting out security functions by foreign airlines;
(v) RTI reply that airline cannot perform operations without
its own security department at the airport;
(vi) Mandatory requirement for an airline to maintain
security control room at the airport;
(vii) Appointment of security personnel at different stations in
India and imparting of training to them after alleged
closure of security department;
(viii) Letter issued by BCAS to GULF Airways to increase its
security staff and also provide them refresher training;
(ix) Mandatory requirement to post Security Coordinator at
Mumbai Airport.
31) On the issue of closure, CGIT has held that validity of
closure was not referred to the Tribunal, the issue before it was
whether there was any closure at all. However, despite observing that
the issue of validity of closure was not referred to it, CGIT has still
proceeded to hold that there is no valid closure of security
functions/department. In this regard, relevant findings of the
Tribunal in paras-55 to 58 of the Award reads thus:
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55. It is no doubt true that issue of closure being proper or not is
not referred to this tribunal and therefore the same cannot gone
into but here the issue is whether there is closure or not ? Whether
it is legal and proper is not the issue to be gone into. Once it is held
that there is no closure at all of security functions/dept. by first
party airline then that can be considered since the retrenchment is
on the ground of closure of security functions/dept. by first party
airline.
56. Learned Counsel for the first party airline is relied upon the
decision in case of Management of Kirloshkar Institute of Advance
Management Studies Vs. Shri N. Manjunath & Ors-W.A. No.
30065/2012 (L-TER)- to submit that action of management of
engaging the contractor after retrenching the permanent workmen
is to be upheld. In para 18 of the said judgment it is held that notice
to the government in respect of closure is not mandatory but
directory.
57. Reliance is also placed on the decision in case of Santosh
Shindal Vs. School Management of Dayanand School & Anr-WP
[C] No. 286/2015 to submit that when the post is abolished on
account of non-availability of work the incumbent looses lien on
the post and he must go home. I think the observations in the cited
dictum does not help the first party airline. The same is the case
when reliance is placed on the decision in case of Ghatge & Patil
concerns Employees Union Vs. Ghatge & Patil Transport P. Ltd.-
1968 (1) SCR-300 to submit that there is no bar on introduction of
contract system and that the employer is free to rearrange his
business.
58. Considering all these facts I find that there is no valid closure of
security functions/dept, by the first party company and therefore
the action of termination of services of the concerned workmen on
the ground of closure of security section/dept. at Mumbai airport is
not legal and proper. Once we come to the conclusion that there is
no valid closure of security dept. at Mumbai airport by first party
airline it cannot be said that reference itself is not maintainable as
security unit is closed. As such the reference is maintainable. The
above issues are therefore answered accordingly as indicated
against each of them in terms of above observations.
(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
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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.
D. 2 BROAD ISSUES FOR CONSIDERATION 33) Respondent-Union attempted to demonstrate before the
CGIT that no prohibition was imposed by BCAS on performance of
self-handling of security functions and that BCAS, in law, could not
have imposed any such prohibition. Thus, three broad issues that
arise for consideration in the present case are as under:
(I) Whether BCAS factually refused to clear security
programme of Petitioner-Airline at Mumbai Airport on the
ground of it performing self-handling of security functions?
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(II) Whether BCAS could have imposed any prohibition on
Petitioner-Airlines on performance of self-handling of security
functions at Mumbai Airport?
(III) Even if it is assumed that the officials of BCAS did impose
the condition of Petitioner not performing self-handling of
security functions for clearing its security programme, whether
it is justified in acting on such directive thereby contracting out
its security functions to Jet Airways?
D. 3 ISSUE NO. 1: REFUSAL BY BCAS TO APPROVE
PETITIONER'S SECURITY PROGRAM DUE TO
PERFORMANCE OF SELF-HANDLING OF SECURITY
FUNCTIONS
34) To examine whether there was any prohibition imposed
by BCAS on the Petitioner-Airline on performing self-handling of
security functions, it would be first necessary to refer to the letters
dated 17 May 2012 and 16 May 2013, which are strenuously relied
upon by Mr. Talsania. It appears that Petitioner-Airline had
submitted its Security Programme to BCAS for approval by letter
dated 6 May 2012. BCAS returned the Security Programme
unapproved by letter dated 17 May 2012 with direction for
resubmission. The letter dated 17 May 2012 reads thus:
CAS/2/SP-2010/DIV-33
BUREAU OF CIVIL AVIATION MINISTRY
(MINISTRY OF CIVIL AVIATION)
GOVERNMENT OF INDIA
‘A’ Wing,
JANPATH BHAVAN
JANPATH, NEW DELHI-110003
DATED: 17/05/2012
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Neeta Sawant WP-3547-2021-FCTo,
M/s. Saudi Arabian Airlines,
Chatrapati Shivaji International Airport,
2C, 2nd Floor,
Mumbai-400099
(Kind attn: Mr. ADEL ALGHDOKHY, Station Manager)
Subject: Return of security program regarding.
Sir,
Please refer to your letter No. 239/828/0148-2012 dated
06/05/2012 submitting the security program of Saudi Arabian
Airlines.
The security program is returned with the following remarks:
1. Chapter 7, para 7.2 wording does not matches with the
BCAS security program template.
2. Chapter 7, para 7.4 wording does not matches with the
BCAS security program template.
3. Chapter 7, para 7.6 total number from XVII onward to be
corrected.
4. Chapter 16, para 16.3.4(II) Saudi Arabian cargo
component needs to be clarified. The status of Saudi
Arabian Airline cargo company and its role be given in
detail
5. Chapter 28, para 13.1.1 security program at Mumbai
station is not agreed. Hence, Foreign airline is not
authorized to do self-handling of the security functions.
Airlines may enter into contract with Indian Air Carrier,
having international operations from that airport.
6. CEO appointment letter to be provided.
In view of the foregoing, security program is returned herewith,
which may be resubmitted after doing the needful.
Yours faithfully
Dy. Commissioner of Security.
(emphasis added)
35) Thus, by letter dated 17 May 2012, the Deputy
Commissioner of Security did not approve the security programme of
the Petitioner-Airline and returned the same with a direction to
resubmit fresh security programme after clearing the deficiencies
enumerated in the letter. Mr. Talsania relies on para-5 of the letter
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Neeta Sawant WP-3547-2021-FC
dated 17 May 2012 in which it was stated that ‘Hence, Foreign airline
is not authorized to do self-handling of the security functions. Airlines
may enter into contract with Indian Air Carrier, having international
operations from that airport’. Mr. Talsania reads the above
observations of BCAS to mean prohibition for Petitioner-Airline to
perform self-handling of security functions with a further direction to
contract out security functions to Indian Air Carrier having
international operations from Mumbai Airport. On the contrary,
Mr. Govilkar and Mr. Siddiqui submit that the letter dated
17 May 2012 does not contain any direction or prohibition in respect
of self-handling of security functions. According to Mr. Siddiqiui, use
of the word ‘Hence’ in para-5 of the letter makes it clear that adverse
observations about self-handling of security functions were made
because of the preceding sentence in para-5 that ‘Chapter 28, para
13.1.1 security program at Mumbai station is not agreed’.
36) Mr. Siddiqui has submitted that BCAS did not agree with
Chapter 28, para 13.1.1 of the security program which made adverse
observation about self-handling of security functions by Airlines,
which does not mean that there was any prohibition on undertaking
self-handling of security functions. Mr. Siddiqui has further relied
upon para-6 of letter dated 17 May 2012 containing a direction ‘CSO
appointment letter to be provided’. According to Mr. Siddiqui, if there
was any fetter on Petitioner-Airline for doing self-handling of security
functions at Mumbai Airport, there was no necessity for issuing
directions for submission of appointment letter of CSO as there could
be no CSO if the security functions were not to be performed by
Petitioner-Airline.
Page No.32 of 67 13 November 2024 ::: Uploaded on - 14/11/2024 ::: Downloaded on - 15/11/2024 00:36:03 ::: Neeta Sawant WP-3547-2021-FC 37) It appears that during 2nd to 5th April 2013, team of
officials from BCAS conducted security audit of Mumbai Airport
and noticed few deficiencies in the security arrangements of
Petitioner-Airline. Accordingly, it issued letter dated 16 May 2013 to
the Petitioner which reads thus :
Government of India
Ministry of Civil Aviation
Bureau of Civil Aviation Security
A Wing-1, II, III Janpath Bhavan, Janpath
New Delhi-110001Date: 16 May 2013
The Manager (Security),
Saudi Airways,
CLSA Mumbai Airport (Maharashtra)
Sub-Regarding security arrangement at Mumbai AirportSir,
A team of officers from this department conducted security audit
of Mumbai airport from 2nd to 5th April 2019 and noted the
following deficiencies in the security arrangements –
1. Aircraft operator Security programme is not approved
2. Airline is performing Self-handling of Security functions
except Cargo by Air India Security which is in violation of
AVSEC Order No. 3/2009 and AVSEC Order No. 5/2009
3. Out of 18 Security staff 14 done have undergone basic
AVSEC. All are due for refresher courses.
The undersigned is directed to request you to take corrective
measures within a period of 30 days under intimation to this
Bureau to preclude possibility of unlawful interference with Civil
Aviation operations.
Yours faithfully,
K.C. Upadhyay
Dy. Commissioner of Security (C.A.)
(emphasis added)
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38) While observing that security programme of the
Petitioner-Airline was not approved, BCAS further observed in para-2
of the letter that the Airline was performing self-handling of security
functions, except Cargo by Air India Security, which is in violation of
AVSEC Order No.3/2009 and AVSEC Order No. 5/2009. Petitioner-
Airline strenuously relies upon para-2 of the letter dated
16 May 2013, which, according to Petitioner, clearly prohibited it
from performing self-handling of security functions. Mr. Govilkar and
Mr. Siddiqui once again read letter dated 16 May 2013 as not
imposing any prohibition, but merely requesting the Airline to take
corrective measures and get its security programme approved from
BCAS.
39) While Respondent-Union strenuously contended before
CGIT that there was no prohibition on performance of self-handling
of security functions by BCAS, it contended exactly to the opposite in
Writ Petition filed by it before this Court. As observed above,
Respondent-Union made an unsuccessful attempt of challenging
Clause-5 of the letter dated 17 May 2012 by filing Writ Petition No.
2679 of 2013 in this Court. It would be apposite to reproduce para-
21(j) of the said petition:
In the aforesaid second impugned directions dated 17 May 2012
issued to Respondent No. Airline by BCAS is departure from its
original impugned order No 3/2009 dated 21 August 2009 as the
original BCAS Order 3/2009 states that the Foreign airlines “may”
enter into agreement with Indian Air Carrier having international
operations. However, the second impugned direction dated 17 May
20012 passed by BCAS states that the Foreign Airline “is not
authorised to do self handling of the security function”. Thus the
second impugned directions dated 17 May passed by BCAS is a
departure from its original impugned directions order dated 21
August 2009 which made it optional for the foreign airlines to sign
contract with Indian Airlines to handle security function.
Therefore, it is apparent from the second directions dated 17 May
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5 Airline that BCAS was facilitating the decision of the said airline
to terminate its permanent employees who had refused to accept
Voluntary Separation scheme offered by Respondent No 5 Airline.
Thus such order of BCAS is passed more so in favor of the said
Airline and not in the interest of India and the aircraft.
(emphasis added)
40) Perceiving that paragraph 5 of letter dated 17 May 2012
contained prohibition on Petitioner-Airline in performing self-
handling of security functions, Respondent-Union and terminated
employees challenged the same in Writ Petition No. 2679 of 2013,
prayers made therein read thus :
PRAYERS
The Petitioner therefore prays that-
a) This Hon’ble Court be pleased to issue a writ of certiorari or
any other writ/order/direction to quash and set aside the
impugned directions passed by BCAS vide Clause No 4 of
Order No 3/2009 dated 21 August 2009 being ultra-vires
Aircraft Act, 1934, irrational, arbitrary, and unreasonable and
unconstitutional being violation of Article 14 and 21 of the
Constitution of India;
b) This Hon’ble Court be pleased to issue a writ of certiorari or
any other writ/order/direction to quash and set aside the
impugned directions passed by BCAS vide Clause No 5 Order
dated 17 May 2012 being ultra-vires Aircraft Act, 1934
irrational, arbitrary and unreasonable, constitutional being
violation of Article 14 and 21 of the Constitution of India;
c) This Hon’ble Court be pleased to issue a writ/order/directions
to quash the specific approval by BCAS to the contract signed
by and between Respondent No 5 and Respondent No 6
Airlines to deploy employees in place of trained and qualified
persons to handle security function being irrational and
arbitrary, unreasonable, unconstitutional and approved with
malafide intentions of facilitating commercial gains of the
Respondent No 5 and Respondent No 6 airlines,
d) Pending the hearing and final disposal of the present Writ
Petition this Hon’ble Court be pleased to direct the Respondents
to set aside the operation/execution of the said impugned
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Neeta Sawant WP-3547-2021-FCdirections passed by BCAS vide Clause No 4 of Order No
3/2009 dated 21 August 2009;
e) Pending the hearing and final disposal of the present Writ
Petition this Hon’ble Court be pleased to direct the Respondents
to set aside the operation/execution of the said impugned
directions passed by BCAS vide Clause No 5 of Order dated 17
May 2012;
f) Pending the hearing and final disposal of the present Writ
Petition this Hon’ble Court be pleased to Respondents to set
aside the operation and execution of specific approval given by
BCAS to approve contract between Respondent No 5 and
Respondent No 6 airlines to deploy contract employees to
handle security function,
g) To grans ad-interim relief in terms of prayer clause (d), (e) and
(f) above,
h) Costs;
(emphasis added)
41) There are two purposes for which the averments, as well
as the prayers in Writ Petition No. 2679 of 2013 filed by Respondent-
Union and its terminated employees can be considered. Firstly, the
Respondent-Union and the terminated employees challenged inter-
alia letter dated 17 May 2012 and did not succeed in getting the same
set aside. Secondly and more importantly, Petitioner and terminated
employees who now contend that the letter dated 17 May 2012 did
not contain any prohibition on Petitioner-Airlines in performing self-
handling of security functions, averred exactly to the contrary in Writ
Petition No. 2679 of 2013. In that petition, they took a specific plea
that para-5 of the letter dated 17 May 2012 did contain a prohibition
on self-handling of security functions, which was contrary to the
mere enabling provision in AVSEC Order No.3/2009. The
Respondent-Union and the terminated employees have thus
approbated and reprobated, which cannot be countenanced in law.
They correctly perceived letter dated 17 May 2012 to mean a
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prohibition on Petitioner-Airlines from performing self-handing of
security functions and therefore challenged the said letter before this
Court. Later, they took a volte-face before CGIT by contending to the
contrary that the said letter did not prohibit Petitioner from self-
handling of security services. Thus, by challenging para 5 of the letter
dated 17 May 2012 in Writ Petition No. 2679 of 2013, Respondent-
Union and the terminated employees admitted the fact that the said
letter contained prohibition on performance of self-handling of
security functions. The CGIT has completely ignored this aspect
while erroneously holding that no prohibition was imposed by BCAS
on Petitioner performing self-handling of security functions.
42) In the present case, there appears to be clear indication
given by the Deputy Commissioner of Security (Civil Aviation) to
Petitioner-Airlines on 17 May 2012 and 16 May 2013 not to perform
self-handling of security functions. The letter dated 17 May 2012
clearly reflects disinclination on the part of the Deputy
Commissioner of Security (Civil Aviation) to approve security
program on account of Petitioner-Airline performing self-handling of
security functions. In fact, the Deputy Commissioner of Security
(Civil Aviation) suggested to the Petitioner that it may enter into
contract with Indian Air Carrier having international operations from
Mumbai Airport. Thus, Petitioner was specifically given to
understand that unless it entered into contract with Indian Air Carrier
with international operations at Mumbai Airport, its security
program shall not be approved. This is further buttressed by the fact
that the moment the Petitioner communicated to the Deputy
Commissioner of Security by letter dated 20 June 2013 that it
contracted out security functions at Mumbai Airport to Jet Airways,
BCAS first granted permission to provide security services to
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Petitioner by Jet airways at Mumbai Airport by letter dated 5
September 2013 and thereafter approved its security program by letter
dated 31 December 2014.
43) Coming to the letter dated 16 May 2013 issued by the
Deputy Commissioner of Security, para-2 thereof undoubtedly
communicated to the Petitioner that its activity of performing self-
handling of security functions was in violation of AVSEC Order
Nos.3/2009 and 5/2009.
44) It must also be noted that the letters dated 17 May 2012
and 16 May 2013, apart from being issued with a substantial gap of
one year, are issued by two successive Deputy Commissioners of
Security. Letter dated 17 May 2012 was issued by Mr. S.P. Singh,
holding the post of Deputy Commissioner of Security (Civil
Aviation). The subsequent letter dated 16 May 2013 is issued by Mr.
K.C. Upadhyay, the successive Deputy Commissioner of Security
(Civil Aviation).
45) In my view therefore, both letters dated 17 May 2012 and
16 May 2013 clearly conveyed disinclination on the part of BCAS to
approve security program of Petitioner for Mumbai Airport on the
ground of Petitioner performing self-handling of security functions.
Respondent-Union also correctly perceived the same as a prohibition
and challenged Para 5 of letter dated 17 May 2012 in Writ Petition
No.2679 of 2012, but later look a volte-face before CGIT that no such
prohibition was imposed. The first issue for consideration is answered
accordingly.
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TO APPROVE PETITIONER’S SECURITY PROGRAMME DUE
TO SELF-HANDLING OF SECURITY FUNCTIONS
46) The next issue for consideration is whether BCAS could
have imposed any such prohibition on Petitioner-Airline on
performing self-handling of security functions. Both Mr. Govilkar and
Mr. Siddiqui have strenuously submitted that there could be no such
prohibition under the Rules and also under the AVSEC Orders. They
have relied upon AVSEC Order No.3/2009 and AVSEC Order
No.5/2009 and therefore it would be necessary to refer to those
orders.
47) In exercise of powers under the provisions of Aircraft
Act, 1934, the Aircraft (Security) Rules, 2011 have been formulated
dealing with safeguard of civil aviation against the acts of unlawful
interference. Under the Rules, Commissioner of Security (Civil
Aviation), Bureau of Civil Aviation Security, Ministry of Civil
Aviation is entrusted with various powers, duties and functions for
taking necessary steps for ensuring security measures of Civil
Aviation. The Rules deal with security measurements at aerodromes,
aerodromes access control, pre-embarkation security checks, security
measures by aircraft operators, catering supplies and stores and
security accidents/incidents. Rule-2 (za) defines ‘security programme’
to mean written measures specified by the Commissioner to be
adopted by an entity to safeguard civil aviation against acts of
unlawful interference. Mr. Siddiqui has strenuously relied upon Rule
26 which provides thus :
‘An aircraft operator shall engage only those personnel for security
duties who are whole line employees whose character and
antecedents have been verified and who are employed after proper
training, selection procedure and certification in accordance with
national civil aviation security programme’.
Page No.39 of 67 13 November 2024 ::: Uploaded on - 14/11/2024 ::: Downloaded on - 15/11/2024 00:36:03 ::: Neeta Sawant WP-3547-2021-FC 48) It appears that in exercise of powers and functions under
the Aircraft Rules, the Commissioner of Security (Civil Aviation)
issued aviation security orders from time to time. Accordingly, the
Security Commissioner issued AVSEC Order No.3/2009 on 21
August 2009 referring the delegation of powers to him under the
Aircrafts Act, 1934 vide Notification dated 3 July 1997 and DGCA
Circular dated 28 September 2007 as well as Airports Authority of
India (General Management, Entry for Ground Handling Services)
Regulations, 2007. By AVSEC order No. 3/2009 issued on 21 August
2009, the Commissioner of Security (Civil Aviation), Bureau of Civil
Aviation Security directed that the 13 enlisted activities pertaining to
aircraft operations shall be treated as ‘Aircraft Operators’ Aviation
Security Functions’. AVSEC Order No.3/2009 reads thus:
BUREAU OF CIVIL AVIATION SECURITY
(MINISTRY OF CIVIL AVIATION)
GOVERNMENT OF INDIA
A’WING (I-III Floor), JANPATH BHAVAN
JANPATH, NEW DELHI
Dated 21/08/2009AVSEC Order No. 03/2009
Sub: Security Functions to be carried out by aircraft operators.
In exercise of powers conferred by Section 5A of Aircraft Act 1934
delegated to him vide Government of India, Ministry of Civil
Aviation Notification No. 1797 dated July 3, 1997, read with para-
4 of OGCA Circular No 9/1/2002-IR dated 28/9/07; and
Regulations 6 and 7 of the Airports Authority of India (General
Management, Entry for Ground Handling Services) Regulations,
2007 issued vide Gazette of India (Extraordinary) Notification No.
AA/LEGAL/GHREG/2007 dated 18.10.2007, the Commissioner
of Security (Civil Aviation), Bureau of Civil Aviation Security
(BCAS); for the purpose of securing the safety of aircraft
operations, directs that the following activities pertaining to aircraft
operations shall be treated as Aircraft Operators’ Aviation Security
Functions:
i) Access control to the aircraft; Page No.40 of 67 13 November 2024 ::: Uploaded on - 14/11/2024 ::: Downloaded on - 15/11/2024 00:36:03 ::: Neeta Sawant WP-3547-2021-FC ii) Aircraft security search/Security check during normal as well as bomb threat situation; iii) Screening of registered/unaccompanied baggage, cargo, mail and company stores etc.; iv) Surveillance of screened baggage till acceptance at check-in counters; v) Security control of the checked baggage from the point it
is taken into the charge of aircraft operator till loading
into aircraft;
vi) Passengers baggage reconciliation/identification
vii) Security of baggage tag, boarding cards and flight
documents;
viii) Security of mishandled/unaccompanied/transit/
transfer baggage;
ix) Secondary checks at laddar point of aircraft;
x) Security of catering items from pre-setting stage till
loading into aircraft,
xi) Security control of express cargo, courier bags, cargo,
company stores, parcels, mall bags and escorting from
city side up to aircraft;
xii) Receiving, carriage and retrieval of security removed
articles;
xiii) Any other security functions notified by the
Commissioner from time to time.
2. Despite the fact that the above activities are carried out on
ground at the airports, keeping in view the AVSEC requirements
under the current surcharged security scenario, these AVSEC
functions cannot be mixed-up with other ground handling
activities, and these AVSEC functions shall not be allowed by an
aircraft operator/airport operator to be undertaken by a Ground
Handling Agency
3. The above mentioned security functions shall be carried out by
the concerned airlines’ security personnel who possess all
competencies required to perform their duties and are appropriately
trained and certified according to the requirements of the approved
Security Programme of respective Aircraft Operator and the
National Civil Aviation Security Programme of India.
4. Foreign airlines may enter into agreement with Indian Air
carriers having international operation from that airport only after
specific approval from the BCAS in each case.
5. As approved by Ministry of Civil Aviation (GoI) vide letter no.
AV-24013/004/2007-AAl dated 20th March 2006 the in-line
screening of hold baggage to be transported by an aircraft operator
from the airports in India, shall be carried out by trained and
BCAS certified screeners of respective airport operator or NACIL
or their JV at airports having in-line baggage Inspection System.
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6. Screening and security control of Cargo consignments may also
be Undertaken by trained and BCAS certified screeners of
Regulated Agents approved by the BCAS in accordance with the
instructions issued by the BCAS from time to time.
7. The responsibility for all security related functions shall be with
the airlines concerned. For this purpose, a security coordinator
shall be designated by the respective airlines at each airport from
where they shall have operations.
8. This order supersedes all instructions (except BCAS Cir. No.
4/2007) on the subject and shall come into force with immediate
effect. Violation of this order will attract legal action under section
11A of Aircraft Act, 1934.
This issues with the approval of Commissioner of Security (CA)
Sd/-
(M. Malaviya)
I.P.S
Addl. Commissioner of Security (CA)
(emphasis added)
49) Para-4 of AVSEC Order No.3/2009 made enabling
provision for foreign airlines to enter into agreement with Indian Air
Carriers having international operation from that airport only after
specific approval from BCAS. Mr. Siddiqui has relied on para-3 of
AVSEC Order No.3/2009 providing that the specified security
functions are to be carried out by the concerned airlines’ security
personnel possessing all competencies required to perform their
duties. Para-7 of AVSEC Order No.3/2009 directed designation of
security coordinator by the respective airlines at each airport.
50) On 29 October 2009, AVSEC Order No.5/2009 was
issued based on recommendations of the Committee constituted for
reviewing the norms for deployment of airlines’ security staff to
undertake security functions relating to airlines. The
recommendations of the Committee accepted by Ministry of Civil
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Aviation, were directed to be implemented by AVSEC Order
No.5/2009, which reads thus:
NO.CAS-7(97)-2000-DIV-I(RP Singh Committee)
BUREAU OF CIVIL AVIATION SECURITY
(MINISTRY OF CIVIL AVIATION)
GOVERNMENT OF INDIA
‘A’ WING, JANPATH BHAWAN,
JANPATH, NEW DELHI-110001
Date: 29-10-2009AVSEC ORDER NO. 05/2009
A Committee under the Chairmanship of Shri Arun Mishra, the
then Joint Secretary, Ministry of Civil Aviation was constituted by
MCA for reviewing norms for deployment of airlines’ security staff
to undertake security functions, relating to airlines. The report of
the Committee has been accepted by MCA. Therefore, Operators
are hereby directed to implement the recommendation of the
committee as given below!-
(A) As per ICAO guidelines, each airline must have a Chief
Security Co- ordinator who should report directly to the
Chief Executive Officer, CMD of the airline. The
functional performance of all security heads must be
evaluated by the Chief Security Co-ordinator of the
airline only.
(B) Officers of the airline Security Department of suitable
seniority, consistent with the demands of the job, shall
be posted at major domestic stations for effective
security supervision and implementation.
(C) At smaller stations having two or three flights only, the
station head of the airline, viz. the Station Manager,
shall be in-charge of the security of the airlines
operations from that station and would be responsible
for all matters relating to security.
(D) At all on-line foreign stations, airlines must post its own
India-based Security Supervisors/ Officers who shall be
responsible for all matters to security of its operations,
For, Non-Resident Indian (NRI)/Persons of Indian
Origin (PIO) specific clearance be taken from BCAS.
(E) Each airline should establish a Security Control Room at
major stations to co-ordinate all security functions and
ensure quick response during emergencies. The Control
Room should be equipped with telephonic and wireless
communication links with other operational
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Neeta Sawant WP-3547-2021-FCdepartments of the airline as well as with the
CISF/APSU and should be manned during its
operations by one or more security personnel depending
upon the volume of operations.
(F) Security staff shall be deployed by the airlines for
following security functions as per the norms fixed by
the Committee given at Annexure-1:-
(i) Security of Aircraft
(ii) Screening of Registered Baggage
(iii) Surveillance in departure hall.
(iv) Screening and escorting of screened cargo/
unaccompanied baggage.
(v) Security of catering items.
(vi) For security and surveillance in BMA and for
accompanying the screened baggage upto
aircraft.
(vii) Security in Baggage break-up area.
(viii) Secondary security checks.
(ix) Security of parked/ idle aircraft.
(x) Security of Control Room(including bag tags,
boarding cards, etc.)
(xi) Aircraft Search (Pre-flight anti sabotage
Checks)
(G) The Security Supervisor shall ensure that the Aircraft
Release certificate (Annexure-II) is signed by all the
concerned departments and signature is obtained from
the Commander of the flight.
A copy of the signed aircraft release certificate shall be
kept for record with the security department, and will be
put up for scrutiny during checks and audit by the BCAS
officers.
(H) This issues with the approval and direction of
Commissioner of Security (CA) under Section 5A of
Aircraft Act, 1934. Any violation shall attract penalty
under section 11A of Aircraft Act 1934.
(I) This order supersedes BCAS Circular No 05/2007 dated
23-04-2007 and shall be implemented by all concerned
within 30 days of issue.
(M. Malaviya)
IPS
Addl. Commissioner of Security (CA)
51) Referring to AVSEC Order Nos.3/2009 and 5/2009, the
Deputy Commissioner of Security (Civil Aviation) directed on
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16 May 2013 that Petitioner-Airlines was performing self-handling of
security functions (except Cargo by Air India Security) in violation of
the said two AVSEC Orders.
52) Before considering whether AVSEC Order Nos.3/2009
and 5/2009 contain any prohibition on foreign airlines from
performing self-handling of security functions, it would be necessary
to make a quick reference to the Circular issued by the Director
General of Civil Aviation, Aeronautical Information Services bearing
AIC SL. No.3/2010 dated 2 June 2010 relied upon by Mr. Talsania.
By that Circular, guidelines were issued for grant of permission for
providing ground handling services at Airports other than those
belonging to the Airports Authority of India. It would be relevant to
reproduce para-2 of the said Circular which reads thus:
2. Eligibility Criteria for Ground Handling Service Providers
While the Airports Authority of India would promulgate the
necessary regulations, with the previous approval of the Central
Government, under the Airports Authority of India Act, 1994,
with respect to provision of ground handling services at the
airports under their control, it has been decided by the Central
Government that with immediate effect, the following entities shall
be eligible to undertake ground handling services at airports other
than those belonging to the Airports Authority of India:-
(A) All Metropolitan Airports, i.e. the airports located at
Delhi, Mumbai, Chennai, Kolkata, Bangalore and
Hyderabad
(i) The airport operator itself or its Joint Venture (JV)
partner;
(ii) Subsidiary companies of the national carrier i.e.
National Aviation Company of India Ltd. or their
joint ventures specialized in ground handling
services. Third party handling may also be permitted
to these subsidiaries or their JVs in the basis of
revenue sharing with airport operator subject to
satisfactory observance of performance standards as
may be mutually acceptable to the airport operator
and these companies; and
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(iii) Any other ground handling service providers selected
through competitive bidding on revenue sharing basis
by the airport operator subject to security clearance
by the Government and observance of performance
standards as may be laid down by the airport
operator.
Note.- A minimum of two ground handing service providers shall be
authorized at these airports in addition to the subsidiaries of National
Aviation Company of India Ltd.
(B) At all other airports:
In addition to the entitles mentioned above, the airline operators
shall also be permitted to undertake self-handling. However, foreign
airlines shall not be allowed to engage themselves in self-handling.
(C) Additional Provisions:
The provisions contained in (A) and (B) above shall be subject to
the following:-
(i) All private airlines, including foreign airlines, may
undertake self handling in respect of “passenger and
baggage handling activities at the airport terminals”
and “traffic service including the passenger check-in”,
which require passenger interface, at all airports.
(ii) All cargo airlines, which have their own cargo
aircrafts, may undertake self handing in their hub
airports.
(iii) Foreign airlines / private independent ground
handing service providers not be permitted self
ground handling / ground handling at joint user
Defence airfields.
53) Mr. Talsania has relied upon direction in para-2(B) to the effect
that ‘However, foreign airlines shall not be allowed to engage
themselves in self-handling’. In my view however, the Circular dated
2 June 2010 is not of much relevance for deciding the issue at hand
for variety of reasons. Firstly, the above quoted direction relied upon
by Mr. Talsania applies to Airports other than Delhi, Mumbai,Page No.46 of 67
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Neeta Sawant WP-3547-2021-FCChennai, Kolkata, Bangalore and Hyderabad. In fact, for these six
Metropolitan Airports, Clause-2(A)(i) of the Circular directs that the
airport operator itself or its Joint Venture (JV) partner shall be eligible
to undertake ground handling services. As rightly pointed out by
Mr. Govilkar and Mr. Siddiqui, the Circular dated 2 June 2010
essentially governs only ground handling services. No doubt, it is true
that some of the security functions also relate to ground handling
activities. However, the security functions envisaged under the
Aircraft Security Rules, as well as AVSEC Orders Nos.3/2009 and
5/2009 pertaining to Aircraft Operators’ Aviation Security Functions
cover various other activities in addition to ‘ground handling’.
Therefore, reliance by Mr. Talsania on Circular dated 2 June 2010 is
not of much assistance. He has also produced copy of another
Circular bearing No.SL-7/2008 dated 28 September 2007 dealing
with ground handling services containing pari materia provisions as
that of 2010-Circular and which again does not provide necessary
assistance to the issue at hand.
54) Mr. Talsania, has also relied upon Airports Authority of
India (General Management, Entry for Ground Handling Services)
Regulations, 2007 and particularly Rule-3 thereof, which provides
thus :
3. Ground handling services at airport.- (1) A carrier may carry out
ground handling services at metropolitan airports, that is, the
airports located at Delhi, Mumbai, Chennai, Kolkata, Bangalore
and Hyderabad, by engaging the services of any of the following,
namely:-
(i) Airports Authority of India or its Joint Venture Cornpany,
(ii) subsidiary companies of the national carrier, that is,
National Aviation Company of India Limited or its joint
ventures specialized in ground handling services:
Provided that third party handling may be permitted to
these subsidiaries or their Joint Ventures on the basis of
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Neeta Sawant WP-3547-2021-FCrevenue sharing with the Authority subject to satisfactory
observance of performance standards as may be mutually
acceptable to the Authority and these companies;
(iii) any other ground handling service provider selected through
competitive bidding on revenue sharing basis, subject to
security clearance by the Central Government and
observance of performance standards.
(2) At all other airports, in addition to the entities specified in sub-
regulation (1) of regulation 3, self handling may be permitted to
the airlines, excluding foreign airlines.
(3) All concerned agencies shall ensure that the state-of-the-art
equipment are used and ‘best practices’ are followed.
(4) Airlines or entities presently involved in ground handling which
are not governed by these regulations shall not be permitted to
undertake self-handling or third party handling with effect from the
first day of January, 2009.
55) Again, the Ground Handling Services Regulations, 2007
relied upon by Mr. Talsania would not provide much assistance to the
issue at hand as the security functions covered by AVSEC Order
No.3/2009 travel beyond the ground handling activities.
56) It therefore cannot be concluded with a degree of
certainty that the Rules or AVSEC Orders permitted BCAS to impose
the prohibition on a foreign airline from performing self-handling of
its security functions. However, it is not necessary to delve deeper into
this aspect. Therefore, at the instance of Mr. Govilkar and
Mr. Siddique, though this Court has gone into the provisions of Rules
as well as of AVSEC Orders to find out whether BCAS could have
imposed any prohibition on Petitioner-Airline from performing self-
handling of security functions, that inquiry in these proceedings is
unnecessary. That issue could have been decided in Writ Petition No.
2679 of 2013 filed by Respondent-Union. However, the said Petition
came to be dismissed for non-prosecution. It was not the remit of
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enquiry before CGIT to find out whether it was permissible for BCAS
to issue any such prohibition. Therefore, it is not necessary to answer
the second issue about permissibility for BCAS to impose prohibition
on Petitioner-Airline from performing self-handling of security
functions.
D. 5 ISSUE NO. 3: WHETHER PETITIONER IS JUSTIFIED IN
ACTING ON BCAS’S DIRECTIONS AND CONTRACTING
OUT ITS SECURITY FUNCTIONS TO JET AIRWAYS
57) The next issue for consideration is whether Petitioner is
justified in acting on directives of BCAS and contracting out its
security functions to Jet Airways.
58) As observed above, from discussion of the provisions of
Aircraft Rules, AVSEC Orders, Ground Handling Regulations and
Circulars governing guidelines for ground handling as well as the two
letters dated 17 May 2012 and 16 May 2013 issued by BCAS it
appears that there is some degree of ambiguity as to whether there
was indeed any prohibition on foreign airlines from performing self-
handling of security functions. However regardless of whether there
is a restriction or prohibition under Aircraft Act, Rules made therein
or AVSEC Orders issued by BCAS or not, there appears to be clear
indication given by the Deputy Commissioner of Security (Civil
Aviation) to Petitioner-Airlines on 17 May 2012 and 16 May 2013 not
to perform self-handling of security functions. Thus, rightly or
wrongly BCAS indicated disinclination to approve security program
of Petitioner unless it stopped performance of self-handling of
security functions.
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and is mandated to follow the directives issued by the officials of
BCAS. Petitioner is a commercial airline and could not have taken
the risk of litigating against orders issued by BCAS prohibiting it
from performing self-handling of security functions. True it is that it
could have questioned the correctness of letters dated 17 May 2012
and 16 May 2013 or could have challenged them. As observed above,
the letter dated 17 May 2012 was challenged by Respondent-Union
and terminated employees in Writ Petition No. 2679 of 2013 filed
on/or about 17 October 2013. However, by the time the said petition
was filed, another order/ letter dated 16 May 2013 was issued to the
Petitioner-Airline stating that self-handling of security functions by it
was in violation of AVSEC Order Nos.3/2009 and 5/2009. Being a
foreign Airline, Petitioner may not be interested in litigating with the
government authorities and has instead opted to follow the
orders/letters dated 17 May 2012 and 16 May 2013 by contracting
out its security functions to Jet Airways. It must also be appreciated
that at various other Airports, Petitioner had already contracted out
its security functions to Jet Airways which is clear from the letter
dated 20 June 2012 which states as under :
“Kindly note that for security services, we are already with M/s.,
Jet Airways at Delhi, Cochin, Hyderabad and Chennai stations’.
Similarly, for its cargo services, Petitioner has already contracted out
the security functions to Air India Security at Mumbai Airport also.
60) Considering the above position, it is difficult to hold that
there was any deliberate intent on the part of the Petitioner-Airline to
create a farce of closure of security department with ulterior motive
of terminating the services of 10 Security Controllers. In fact,
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necessitated on account of directives issued by the successive Deputy
Commissioners of Security (Civil Aviation), BCAS to the Petitioner-
Airline.
61) Thus Petitioner-Airline cannot be faulted in taking the
measure of contracting out the security functions to Jet Airways to
ensure approval to its security program for Mumbai Airport. The
third issue is answered accordingly.
D.6 CONCLUSIONS ON THE ISSUE OF CONTRACTING OUT
SECURITY FUNCTIONS
62) The CGIT has completely misdirected itself in holding
that BCAS did not issue any directions to close down Security
Department of Petitioner-Airline. The CGIT ought to have
appreciated that closure of its Security Department is an internal
decision of the Airline and BCAS is neither authorized nor has issued
any direction to close any particular department by Petitioner-Airline.
The learned Member of CGIT ought to have appreciated that what is
done by BCAS is not to approve security program of Petitioner unless
it contracted out security functions to Indian Air Carrier having
international operations at Mumbai Airport. The closure of security
department is a natural consequence of contracting out security
functions of Petitioner to Jet Airways, which was necessitated
because of directives issued by BCAS. The CGIT thus formulated an
erroneous question for decision about existence of direction for
closure of security department and proceeded to hold that there was
no such direction. What the CGIT ought to have decided is the issue
as to whether BCAS refused to approve security program of
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Petitioner on account of it performing self-handling of security
functions.
63) The CGIT has drawn an inference of continuation of
security functions by the Petitioner-Airlines on the basis of factors of
(i) continuation of Security Control Room at Mumbai Airport,
(ii) deputation of some of the security personnel for training and
(iii) appointment of Security Personnel at different station in India
after the alleged closure. In my view, the Tribunal has committed an
error in arriving at the conclusion that there was no closure of
security section/department by the Petitioner-Airline. Even after
contracting out its security functions to Jet Airways by the Petitioner,
it is required to depute a Security Coordinator at the Airport as
required under AVSEC Order No.3/2009. Therefore, mere
deployment of Security Coordinator or maintenance of Security
Control Room at the Airport did not mean that Petitioner continued
performance of self-handling of security functions at Mumbai
Airport through its own staff. Mere undergoing of training by some
of the security staff would again be not sufficient for inferring that
there is no closure of security functions. What needs to be
appreciated is that after contracting out the security functions to Jet
Airways, Petitioner did not require services of the 10 Security
Controllers. It felt that it could not bear the burden of salaries of such
Security Controllers and therefore decided to retrench them.
Therefore it is erroneous to infer that the security functions of
Petitioner-Airlines continued at Mumbai Airport even after
contracting out handling of security functions to Jet Airways.
64) Both Mr. Govilkar and Mr. Siddiqui have strenuously
relied upon letter dated 16 May 2013 addressed by the very same
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Deputy Commissioner of Security to Gulf Airways on the basis of
deficiencies noticed during the course of very same security audit of
Mumbai Airport from 2 April to 5 April 2019. The letter dated
16 May 2013 issued to Gulf Airways reads thus :
भारत सरकार
(नागर वि मानन मंत्रालय)
नागर वि मानन सुरक्षा ब्यूरो
‘अ’ खंड, I-II-III तल, जनपथ भ न, जनपथ
नई वि ल्ली-110001पत्र रा० सीएएस-3(32)/2011/अनुभाग-III बी (एसए मुम्बई)
वि नांक : 16 मई, 2013से ा मे,
The Manager (Security),
Gulf Airways
CSIA Mumbai Airport (Maharashtra)वि षय: मुम्बई एयरपोर्ट& पर सुरक्षा व्य स्था के सम्बध मे
श्रीमान,
A team of officers from this Bureau conducted security audit
of Mumbai airport from 02nd to 05th April 2013 and noted the
following deficiencies in the security arrangements:-
1. OCP is not formulated and being implemented at station.
2. There is a shortage of security staff at the station.
3. ASOP is pending renewal approval with letter dated
May’12.
4. Security staff is due for refresher.
The undersigned is directed to request you to take corrective
measures within a period of 30 days under intimation to this
Bureau to preclude possibility of unlawful interference with Civil
Aviation operations
भ ीय
Sd/-
क० सी० उपाध्याय
सुरक्षा उपायुक्त (सी०ए०)
(emphasis added)
65) According to the Respondent-Union, if BCAS was to
impose any prohibition on foreign airlines from undertaking self-
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handling of security functions, it would have communicated similar
prohibition to Gulf Airways also. According to them, far from
indicating any such prohibition in letter dated 16 May 2013 issued to
Gulf Airways, BCAS in fact communicated that ‘there is shortage of
security staff at the station’ and ‘security staff is due for refresher’.
According to the Respondent-Union, both these directions
undoubtedly mean that Gulf Airways was not only permitted to
perform self-handling of security functions through its own staff but
was called it upon to increase the number of security staff, as well as
to depute them for refresher.
66) In my view, the letter sent by BCAS to Gulf Airways can
be of relevance for the purpose of determining the validity of
directions issued by BCAS to Petitioner-Airline on 17 May 2012 and
16 May 2013. However as observed above, the issue of validity of
directions issued by BCAS to Petitioner-Airline cannot be the subject
matter of consideration in the Reference made by the Appropriate
Government to CGIT. It may be that the directives issued by BCAS
to Petitioner-Airline on 17 May 2012 and 16 May 2013 may not be
strictly in consonance of AVSEC Order Nos. 3/2009 and 5/2009, but
Petitioner-Airline was possibly left with no alternative but to follow
the said directives.
D. 7 EMPLOYER’S RIGHT TO REORGANIZE BUSINESS
67) Mr. Talsania has relied upon on judgment of the Apex
Court in Parry and Co. Ltd. (supra) in support of his contention that
the employer has a right to organize its business as it best suits it
needs and that it is the managerial discretion of the employer. The
Apex Court has held in paragraph 14 as under :
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14. It is well established that it is within the managerial discretion
of an employer to organise and arrange his business in the manner
he considers best. So long as that is done bona fide it is not
competent of a tribunal to question its propriety. If a scheme for
such reorganisation results in surplusage of employees no employer
is expected to carry the burden of such economic dead-weight and
retrenchment has to be accepted as inevitable, however unfortunate
it is. The Legislature realised this position and therefore provided
by Section 25-F compensation to soften the blow of hardship
resulting from an employee being thrown out of employment
through no fault of his. It is not the function of the Tribunal,
therefore, to go into the question whether such a scheme is
profitable or not and whether it should have been adopted by the
employer. In the instant case, the Tribunal examined the propriety
of reorganisation and held that the Company had not proved to its
satisfaction that it was profitable. The Tribunal then held (a) that
the scheme was not reasonable inasmuch as the number of
agencies given up in Madras was less than that in Calcutta, ( b) that
though development of manufacturing activity was taken up in
Madras, no such activity was undertaken in Kidderpore, and (c)
that the Company should have developed its manufacturing activity
in Kidderpore simultaneously with the surrender of the agencies. It
is obvious that while reorganising its business it is not incumbent
on the Company to develop its manufacturing side at the very place
where it has surrendered its agencies, namely, Calcutta, nor to do
so at the very same time. These considerations which the Tribunal
took into account were totally extraneous to the issue before it and
the Tribunal ought not to have allowed its mind to be influenced by
such considerations and thereby disabling itself from viewing the
issue from proper perspective. It was also beyond its competence to
go into the question of propriety of the company’s decision to
reorganise its business. Having come to the conclusion that the said
policy was not actuated by any motive of victimisation or unfair
labour practice and therefore was bona fide, any consideration as to
its reasonableness or propriety was clearly extraneous. Therefore,
its finding that the Company had failed to establish that it was
profitable was incompetent. It is for the employer to decide
whether a particular policy in running his business will be
profitable, economic or convenient and we know of no provision in
the industrial law which confers any power on the tribunal to
inquiry into such a decision so long as it is not actuated by any
consideration for victimisation or any such unfair labour practice.
(emphasis added)
68) On the other hand, Mr. Govilkar has relied upon the
Apex Court judgment in Armed Forces Ex Officers Multi Services Co-
operative Society Limited (supra) to distinguish the judgment in Parry
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and Co. Ltd. and in support of his contention that the defence of
reorganization of business is required to be rejected. The Apex Court
held in para 15 as under :
15. The second submission of Shri C.U. Singh that the
management has a right to organise its business based on economic
considerations is well taken. There is also no quarrel with the
principle of Parry & Company v. P.C. Pal, which laid down the
proposition that a bona fide policy decision for reorganising the
business based on economic considerations is within an enterprise’s
proprietary decision and retrenchment in this context must be
accepted as an inevitable consequence. The answer is here itself,
and pertains to the material requirement of bona fide of the
decision. In the present case, the Tribunal has come to the
conclusion that the entirety of business is not lost due to the strike
and the retrenchment seems to have been imposed as retribution
against the workmen for going on a strike. It is for this reason that
the decision of this Court in Parry & Company will not apply to the
facts of the present case.
(emphasis added)
69) However, the judgment in Armed Forces Ex Officers Multi
Services Co-operative Society Limited is rendered in the facts of that
case, where the entire business was not found to be lost due to strike
and termination was found to be a measure of punishment for
striking employees.
70) In the present case, the Petitioner-Airline has taken a
decision to contract out the security functions to Indian Air Operator
to ensure that it could conduct its operations in India by approving its
security plan. Petitioner delayed the decision to contract out its
security functions by making some efforts to continue the system of
performance of security functions through its own staff. It did not
immediately contract out the security functions to Indian Air
Operator after receipt of letter dated 17 May 2012 and continued the
operations by self-handling of security functions at Mumbai Airport
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for a year, until its self-handling of security functions was once again
objected to during the course of security audit leading to issuance of
letter dated 16 May 2013. There is nothing to indicate that there are
malafides on the part of the Petitioner-Airlines in contracting out
security functions to Jet Airways. It is not the case of Respondent-
Union that the two directives of 17 May 2012 and 16 May 2013 were
deliberately procured by Petitioner-Airline from the officials of
BCAS. Petitioner has merely followed the directives issued by BCAS
and it therefore cannot be said that there are any malafides on the
part of the Petitioner-Airline in contracting out security functions.
Therefore, ratio of the judgment of the Apex Court in Parry & Co.
Ltd. would clearly be applicable in the present case.
D. 8 VIOLATION OF PROVISIONS OF ID ACT 71) Having held that the Petitioner was required to close its
security functions at Mumbai Airport on account of disinclination on
the part of the BCAS to approve its security programme, the next
issue is whether the Petitioner followed the statutory provisions while
effecting terminations of the 10 Security Controllers.
72) Respondent-Union alleged violation of various provisions
of the ID Act and Central Rules in the matter of their retrenchment.
It is contended that while retrenching the services of employees,
notice to the appropriate government under Section 25F(c) is not
given. It also contends that the provisions of Rule 77 of the Central
Rules were not followed by observing the seniority list of employees.
It is also contended that the closure is in violation of provisions of
Section 25FFA of the ID Act for failure to serve 60 days’ notice on
appropriate government.
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Appropriate Government on 16 September 2013 under the provisions
of Section 25FFA intimating its decision to close down the security
Section/Department w.e.f. 16 September 2013. However, Section
25FFA requires notice of 60 days before the date of intended closure,
whereas the notice dated 16 September 2013 was in respect of the
closure effected on the very same day. Section 25FFA provides thus:
25FFA. Sixty days’ notice to be given of intention to close down
any undertaking.–
(1) An employer who intends to close down an undertaking shall
serve, at least sixty days before the date on which the intended
closure is to become effective, a notice, in the prescribed manner,
on the appropriate Government stating clearly the reasons for the
intended closure of the undertaking:
Provided that nothing in this section shall apply to– ( a) an
undertaking in which–
(i) less than fifty workmen are employed, or
(ii) less than fifty workmen were employed on an average per
working day in the preceding twelve months,
(b) an undertaking set up for the construction of buildings, bridges,
roads, canals, dams or for other construction work or project.
(2) Notwithstanding anything contained in sub-section ( 1), the
appropriate Government may, if it is satisfied that owing to such
exceptional circumstances as accident in the undertaking or death
of the employer or the like it is necessary so to do, by order, direct
that provisions of sub-section (1) shall not apply in relation to such
undertaking for such period as may be specified in the order.
74) Mr. Siddiqui has strenuously relied upon judgment of the
Apex Court in Mackinnon Mackenzie and Company Limited (supra) in
support of his contention of non-compliance with the provisions of
Section 25FFA. Before the Apex Court, a contention was raised that
the provisions of Section 25FFA are directory and not mandatory.
The Apex Court however rejected the contention and held in para 37
and 44 as under :
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37. The contention urged by Mr C.U. Singh, the learned Senior
Counsel for the respondent Union is that if the interpretation of
the provision under Section 25-FFA of the ID Act as contended by
the learned counsel on behalf of the appellant Company is
accepted to be directory and not mandatory as it would attract the
penal provision against the appellant Company under Section 30-A
of the ID Act, then the purpose and intendment of the amendment
in the year 1972 made to Section 25-FFA of the ID Act, will be
defeated and would nullify the Objects and Reasons for amending
the provisions of the ID Act and it would be contrary to the
legislative wisdom of Parliament. The statutory protection has
been given to the workmen under the provision of Section 25-FFA
of the ID Act, with an avowed object to protect workmen being
retrenched due to closing down of a department/unit of the
undertaking as the livelihood of such workmen and their family
members will be adversely affected on account of their
retrenchment from their service. To avert such dastardly situation
to be faced by the workmen concerned in the
company/establishment, the statutory obligation is cast upon the
employer to serve at least 60 days’ notice on the State Government
before such intended closure of the department/unit to be served
upon the State Government informing the reasons as to why it
intends to close down its department/unit.
44. The statutory provisions contained in Section 25-FFA of the ID
Act mandate that the Company should have issued the intended
closure notice to the appropriate Government should be served
notice at least 60 days before the date on which it intended to close
down the department/unit concerned of the Company. As could
be seen from the pleadings and the findings recorded by the
Industrial Court, there is a categorical finding of fact recorded that
there is no such mandatory notice served on the State Government
by the appellant Company. The object of serving of such notice on
the State Government is to see that it can find out whether or not it
is feasible for the company to close down a department/unit of the
company and whether the workmen concerned ought to be
retrenched from their service, made unemployed and to mitigate
the hardship of the workmen and their family members. Further,
the said provision of the ID Act is the statutory protection given to
the workmen concerned which prevents the appellant Company
from retrenching the workmen arbitrarily and unreasonably and in
an unfair manner.
75) Thus as held by the Apex Court in Mackinnon Mackenzie
and Company Limited provisions of Section 25FFA are mandatory in
nature. Mr. Govilkar has relied upon judgment of the Apex Court in
Inspector General of Registration,Tamil Nadu (supra) which follows the
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judgment in Mackinnon Mackenzie and Company Limited in relation to
an altogether different issue of mandatory or directory nature of time
limit specified in the Rules for passing an order for valuation of
properties for levy of stamp duty. The Apex Court has considered the
findings in Para 37 and 44 of the judgment in Mackinnon Mackenzie
and Company Limited and therefore it is not necessary to cull out
findings in the judgment in IInspector General of Registration,Tamil
Nadu.
76) Section 25F of the ID Act provides thus:
25F. Conditions precedent to retrenchment of workmen.–
No workman employed in any industry who has been in
continuous service for not less than one year under an employer
shall be retrenched by that employer until–
(a) the workman has been given one month’s notice in writing
indicating the reasons for retrenchment and the period of notice
has expired, or the workman has been paid in lieu of such notice,
wages for the period of the notice;
(b) the workman has been paid, at the time of retrenchment,
compensation which shall be equivalent to fifteen days’ average pay
[for every completed year of continuous service] or any part
thereof in excess of six months; and
(c) notice in the prescribed manner is served on the appropriate
Government or such authority as may be specified by the
appropriate Government by notification in the Official Gazette.
77) In the present case, termination of 10 employees is
effected in two tranches. On 4 July 2013, 3 employees were
terminated citing the reason of reduction of workload, without
referring to the plans for closure. Later, services of 7 employees were
terminated simultaneously with Closure Notice. In respect of both the
retrenchments, no notice to the appropriate government under
Section 25F(c) was given.
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77 of the Central Rules in support of the contention that if the rule of
seniority was to be followed, the junior-most employees could be
retrenched and the 10 employees could have been readjusted at other
Airports. However, Mr. Talsania has contended that since the entire
security department itself is closed, there was no question of
following any seniority list under Rule 77. I am unable to agree. As
observed above, after contracting out the self-handling of security
functions, the Petitioner-Airlines was still mandated to deploy
Security Supervisor to coordinate the security functions. Also, there
appears to be some evidence to suggest that one untrained employee
(Mr. Shahid Qureshi, Customer Services Agent Level-III) was
directed by letter dated on 30 January 2015 to handle additional
duties of Security Coordinator after imparting training to him.
Petitioner therefore could have followed the seniority rule and
retrenched only the junior most security coordinators throughout the
country by offering transfers to the 10 employees at other stations.
79) Thus, there appears to be some violation on the part of
the Petitioner-Airline in complying with the provisions of I.D. Act,
both, at the time of retrenching the services of the 3 employees on 4
July 2013, as well as, while effecting closure of Security Department
on 16 September 2013.
80) Mr. Siddiqui has relied upon order of the Apex Court
dated 27 February 2015 in Gulf Air B.S.C. formerly known as M/s. Gulf
Air Versus. Gulf Air Employees Association6 in support of his
contention that termination of services during pendency of
conciliation proceedings is illegal and without jurisdiction. Mr.
Talsania has however relied upon judgment of the Apex Court in L.
6
Order dated 27.02.2015 in SLP(C) No. 6132/2015.
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Robert D’souza (supra) to submit that conciliation proceedings were
not conducted relating to retrenchment and therefore termination
during conciliation proceedings does not amount to change of
conditions of service under Section 33(2)(b) of the I.D. Act. I am in
agreement with the submission of Mr. Talsania that the conciliation
was not being conducted with regard the proposed termination of the
employees in question. The demand notice raised by the Union was
with regard to the contracting out the security functions and not with
regard to retrenchment.
E. CONCLUSIONS
81) The conspectus of the above discussion give rise to following
conclusions:
(i) BCAS refused to clear security programme of Petitioner-
Airline at Mumbai Airport on the ground of it performing
self-handling of security functions;
(ii) Respondent-Union and the terminated employees
perceived the letter dated 17 May 2012 as prohibition of
performance of self-handling of security functions for
Petitioner-Airline and accordingly unsuccessfully
challenged the same before this Court in Writ Petition No.
2679 of 2013.
(iii) Petitioner was required to contract out its security
functions at Mumbai Airport to Jet Airways on account of
refusal by BCAS to approve its security program;
(iv) there are no malafides on the part of Petitioner-Airlines in
contracting out security functions at Mumbai Airport.
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(v) there is violation of provisions of the I.D. Act while
effecting retrenchment of 3 Security Controllers on
4 July 2013 and also in effecting closure dated
16 September 2013 resulting in retrenchment of 7
terminated Security Controllers.
F. NATURE of RELIEF 82) Considering the above position, the issue that now arises
for consideration is the nature of relief that can be granted in favour
of the terminated employees. CGIT has granted the relief of
reinstatement with full backwages and continuity because it held that
there is no valid closure of security functions/department. However, I
am not in agreement with that finding recorded by CGIT. Petitioner
was entitled to retrench the Security Controllers after contracting out
the security functions to Jet Airways. The only technical violation
committed by Petitioner is non-following of requisite procedure at the
time of effecting retrenchments. There is nothing on record to suggest
that after retrenchment of the 10 Security Controllers, Petitioner-
Airline has resumed the activity of self-handling of security functions
at Mumbai Airport. It is not that 10 Security Controllers are required
at Mumbai Station to coordinate the security activities handled by
Indian Air Carrier. Hence directing reinstatement of the terminated
employees would saddle the Petitioner with unnecessary burden of
paying them salaries without any work and the Petitioner will have to
again retrench them after following the due procedure. It also bears
mention that a period of 11 long years has elapsed since termination
of the employees. Unsavory relations between the parties during these
11 long years is yet another factor that needs to be taken into
consideration while deciding the issue of reinstatement. I am
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therefore not inclined to uphold the direction for reinstatement of the
retrenched employees, which is likely to result in another round of
retrenchment. Therefore, the relief of reinstatement, backwages or
continuity cannot be granted in favour of the terminated employees.
Instead grant of lumpsum compensation in lieu of reinstatement and
backwages would meet the ends of justice for violation of provisions
of I.D. Act committed by the Petitioner-Airlines.
83) The next issue is the quantum of lumpsum compensation
to be awarded to the terminated employees. It appears that each of
the employees were paid retrenchment compensation of varying
amounts at the time of their respective retrenchments. Mr. Umesh
Parulekar and Mr. Mohd. Naeem Buddha were paid retrenchment
compensation of Rs.8,78,765/-, whereas Mr. Rizwanakhter A. Patel
is paid retrenchment compensation of Rs.5,64,361/-. The rest seven
terminated employees in pursuance of closure notice are paid
retrenchment compensation of Rs. 9,57,276/- each. In pursuance of
the order passed by this Court for payment of last drawn wages under
Section 17-B of the I.D. Act, each of the terminated employees are
paid various amounts towards last drawn wages. In pursuance of the
order passed by this Court on 26 February 2021, the Petitioner has
deposited full backwages in respect of the terminated employees in
this Court. The details of amounts of retrenchment compensation,
last drawn wages paid and backwages deposited in this Court as
provided by Petitioner-Airlines are as under :
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Neeta Sawant WP-3547-2021-FCSr. Name of Date of Amount(s) Last drawn Amount of Total back
employee retirement paid at the wages last drawn wages
time of payable u/s wages paid deposited
retrenchment 17B of the till 30 in this
Industrial September Court
Disputes 2024
Act
1. Umesh 04-012031 8,78,765 38,347* 15,90,498 68,51,990
Parulekar
2. Mohd. Naeem 30-09-2028 8,78,765 73,050 30,68,100 68,51,990
Buddha
3. Rizwanakther 25-09- 2028 5,64,361 64,019 26,88,798 61,50,431
Patel
4. Thomas George 23-01-2032 9,57,276 75,522 31,71,924 68,70,519
Vincent
5. Rajeev 29-05-2028 9,57,276 75,522 31,71,924 68,70,519
Mampuzha
6. Rajesh Sharma 04-01-2030 9,57,276 75,522 31,71,924 68,70,519
7. Sunil Salve 27-06-2027 9,57,276 75,522 31,71,924 68,70,519
8. Devanand 18-04-2029 9,57,276 56,284 23,63,928 68,70,519
Laxman Ingale
9. Abdul Rahim 11-05-2028 9,57,276 75,522 31,71,924 68,70,519
Ansari
10. Syed Jari Abbas 23-10-2022 9,57,276 75,522 31,71,924 68,70,519
*Mr. Umesh Parulekar is paid half of last drawn wages on account of his gainful
employment post termination.
84) Considering the peculiar facts and circumstances of the
case, in my view, ends of justice would meet if the terminated
employees are permitted to withdraw the amounts of backwages
already deposited in this Court alongwith accrued interest thereon.
Thus, the retrenchment compensation already paid, last drawn wages
paid under Section 17B and withdrawal of amount of backwages
deposited in this Court would provide handsome amounts towards
lumpsum compensation to the terminated employees. To illustrate, in
case of Mohd. Naeem Buddha, he would receive following amounts :
Retrenchment compensation Rs.8,78,765/-
17-B wages Rs.30,68,100/-
Deposited amount of backwages Rs.68,51,990/
Total Rs.1,07,98,855/-
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Additionally, Mr. Mohd. Naeem Buddha would also be entitled to
withdraw the accrued amount of interest on the backwages amount
of Rs.68,51,990/- for the last 3 and half years, which itself may be
approximately to the tune of Rs.15,00,000/-. Thus the total amount
payable in respect of the employee Mr. Mohd. Naeem Buddha would
be to the tune of Rs. 1.22 crore. In my view, therefore the lumpsum
compensation representing retrenchment compensation, last drawn
wages and deposited amount of backwages together with accrued
interest would be more than sufficient considering the unique facts
and circumstances of the present case. There is only one additional
direction that needs to be issued in respect of the employee Mr.
Umesh Parulekar, who is apparently paid 50% last drawn wages, on
account of his gainful employment of assistance in a photo studio.
Since reinstatement or backwages is being denied to all employees
and they are being awarded lump sum compensation, subsequent
drawl of paltry wages by Mr. Parulelar would not be a reason for
payment of lesser amount of compensation to him as compared to
his cohorts. It is therefore necessary that Petitioner pays amount
towards remaining 50% of last drawn wages to him.
G. ORDER
85) Writ Petitions accordingly succeed and I proceed to pass the
following order:
(i) Awards dated 25 November 2019 and 12 December
2019 passed by the CGIT, Mumbai are set aside and
are modified to the extent of award of lumpsum
compensation to the terminated employees in lieu of
reinstatement and backwages.
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wages already drawn under Section 17B of the I.D.
Act together with the deposited amount of backwages
in this Court with accrued interest shall represent the
amount of lumpsum compensation payable in respect
of each of the terminated employees. Each of the
terminated employees shall accordingly be permitted
to withdraw the amount of backwages deposited in
this Court alongwith accrued interest.
(iii) Additionally, Petitioner shall pay to Mr. Umesh
Parulekar the amount of remaining 50% last drawn
wages within 8 weeks.
(iv) Beyond the lumpsum compensation so awarded to the
terminated employees, they shall not be entitled to any
other benefits from Petitioner-Airline.
86) With the above directions, the Writ Petitions are partly
allowed and disposed of. Rule is made partly absolute. There shall be
no order as to costs.
87) With disposal of the Writ Petitions, the Interim
Applications taken out therein do not survive. The same also stand
disposed of.
[SANDEEP V. MARNE, J.]
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2024.11.14
16:20:13
+0530
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