Saudi Arabian Airlines v. The General Secretary, Saudi Arabian Airlines Employees Association

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 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 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 deadweight 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 AIR 1970 SC 1334 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 noncompliance 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 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, 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 selfhandling 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 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

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 selfhandling 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 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 Union[5].

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 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 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

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 ?

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 selfhandling 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 self handling of security functions by the foreign airlines and that 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 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 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.

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 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 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;

(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

(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

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:

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 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.

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?

(II) Whether BCAS could have imposed any prohibition on

(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?

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 To, 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.

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 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.

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-110001 Date: 16 May 2013 The Manager (Security), Saudi Airways, CLSA Mumbai Airport (Maharashtra) Sub-Regarding security arrangement at Mumbai Airport Sir, 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.)

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 2001[2] 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 2012 passed by BCAS and specifically addressed to Respondent No

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.

40) Perceiving that paragraph 5 of letter dated 17 May 2012 contained prohibition on Petitioner-Airline in performing selfhandling 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 thata) 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 directions 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;

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 interalia 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 selfhandling 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 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 selfhandling 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 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 selfhandling 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.

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’.

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 A’WING (I-III Floor), JANPATH BHAVAN JANPATH, NEW DELHI Dated 21/08/2009 AVSEC 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; 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.

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)

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 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 'A' WING, JANPATH BHAWAN, JANPATH, NEW DELHI-110001 Date: 29-10-2009 AVSEC 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 departments 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/

(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 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)

(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

(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:

(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, Chennai, 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 revenue 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 subregulation (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 selfhandling 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 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

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 selfhandling 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.

59) It must be appreciated that Petitioner is a foreign airline 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, retrenchment of the services of the 10 Security Controllers is 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 Petitioner on account of it performing self-handling of security

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 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-110001 पत्र रा० सीएएस-3(32)/2011/अनुभाग-III बी (एसए मुम्बई) वि नांक: 16 मई, 2013 से ा मे, The Manager (Security), Gulf Airways CSIA Mumbai Airport (Maharashtra) वि षय: मुम्बई एयरपोर्ट& पर सुरक्षा व्य स्था क े 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)

65) According to the Respondent-Union, if BCAS was to impose any prohibition on foreign airlines from undertaking selfhandling 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.

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:

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.

68) On the other hand, Mr. Govilkar has relied upon the Apex Court judgment in Armed Forces Ex Officers Multi Services Cooperative Society Limited (supra) to distinguish the judgment in Parry 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.

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 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.

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.

73) In the present case, Petitioner had given notice to the 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:

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 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

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.

78) Respondent-Union has also relied on provisions of Rule 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 Association[6] 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. Order dated 27.02.2015 in SLP(C) No. 6132/2015. 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-

(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.

(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 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: Sr. Name of employee Date of retirement Amount(s) paid at the time of retrenchment Last drawn wages payable u/s 17B of the Industrial Disputes Act Amount of last drawn wages paid till 30 September Total back wages deposited in this Court

1. Umesh Parulekar 04-012031 8,78,765 38,347* 15,90,498 68,51,990

2. Mohd. Naeem Buddha 30-09-2028 8,78,765 73,050 30,68,100 68,51,990

3. Rizwanakther Patel 25-09- 2028 5,64,361 64,019 26,88,798 61,50,431

4. Thomas George Vincent 23-01-2032 9,57,276 75,522 31,71,924 68,70,519

5. Rajeev Mampuzha 29-05-2028 9,57,276 75,522 31,71,924 68,70,519

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 Laxman Ingale 18-04-2029 9,57,276 56,284 23,63,928 68,70,519

9. Abdul Rahim Ansari 11-05-2028 9,57,276 75,522 31,71,924 68,70,519

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/ 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.

(ii) Retrenchment compensation already paid, last drawn 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

(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.]