Airports Authority of India v. Indian Airports Kamgar Union

36. It was further submitted on behalf of the respondent that the 2003 Regulations were not tabled before each House of Parliament which was a mandatory condition and that this provision was expressly inserted into the Airports Authority of India Act, 1994 in order to ensure that there are checks and balances in place to review any regulation made by the petitioner before its adoption so that no such regulations suffer from infirmities such as being detrimental, unfair, arbitrary, discriminatory, to the employees of the petitioner. The respondent has further submitted that the Airports Authority of India management did not formulate the regulations stipulated in Section 18(7) of the Airports Authority of India Act and issued an Office Order dated 31.03.1997 referred to hereinabove that every officer and other employee shall be governed by the same conditions of service as they were when they were employees of the National Airports Division and International Airports Division and that vide its letter dated 03.04.1997, the Ministry of Civil Aviation stated that this adoption of service conditions by the Board was in the nature of regulations of service and that the Airports Authority of India may initiate action on preparing a draft/ Gazette Notification for the same which would have to be vetted by the Ministry of Law before being notified. The said letter dated 03.04.1997 of the Under Secretary to the Government of India reads to the effect that: ―To The Executive Director (P&A) Airport Authority of India, (National Airports Division) Rajiv Gandhi Bhavan, Safdarjung Airport, New Delhi-110008 Subject:-Framing the terms & conditions of service of the employees of erstwhile IAAI/NAA. Sir, I am directed to refer to this provisions contained in Section 42(2)(b) of the Airports Authority of India Act, 1994 which empowers the Authority to frame the conditions of service and remuneration of officers and other employees to be appointed by the Authority under Sub Section 2 of Section 10.

2. The Ministry of Law; while examining the recent question regarding the interpretation of Section 18(2) and 18(7) of the Act have given an opinion that the service conditions adopted by the Board of AAI on 31st March, 1997 are in the nature of regulations of service providing the conditions of the service of the employees and officers of the Authority (extract of the relevant note is enclosed).

3. Under the circumstances, AAI may initiate action immediately for preparing a draft Gazette Notification to be issued by the Central Government in this regard which has to be got vetted by the Ministry of Law before it is notified in the Gazette.‖

37. The respondent has further submitted that the petitioner prepared the 2003 Regulations and straight away got it published in the Official Gazette without taking the requisite approval from the Central Government and without tabling the Regulations before each House of Parliament and that the petitioner did not follow the mandatory procedure laid down by the Airports Authority of India Act, 1994 while formulating the 2003 Regulations and therefore, the 2003 Regulations were legally invalid and it was reiterated by the respondent that as per the Airports Authority of India Act, the approval by the Central Government and laying the regulations before each House of Parliament are mandatory conditions stipulated for the formulation of any regulation and that if these conditions were not fulfilled by formulating the regulations, they are not legally valid.

38. The respondent further submitted that the International Airports Authority of India (General Conditions of Service) Regulations, 1980 contained no provision regarding the premature retirement of employees as provided in Airports Authority of India (General 2003 nor the International Airport Authority Act nor the National Airport Authority Act contained any such provision. The respondent further submitted that the Central Government provided for protection of service to its employees, who came to National Airports Authority by incorporating the stated clause in para 5 of its letter dated 22.09.1989 and therefore, an additional measure of protection was provided to the employees who were transferred from the Civil Aviation Department to National Airports Authority. The respondent thus submitted that the provisions regarding premature retirement under Rule 12(5) of the Airports Authority of India (General 2003 were tantamount to imposing new/additional conditions of service on the employees of the petitioner and that there was no provision regarding the premature retirement in the conditions of service of the employees before 2003 Regulations and thus by the inclusion thereof, there was a change in the conditions of service.

39. The respondent further submitted that the petitioner issued the Corporate HRM Circular No. 02/2012 dated 17.01.2012 constituting a Review Committee for different employees in the establishment of the petitioner, wherein the procedure was laid down for the Review Committee for taking a decision on premature retirement of employees under Regulation 12(5) of the 2003 Regulations and that the Circular No.02/2012 merely provided for a procedure for the Review Committee to take decisions as per Regulation 12(5) of the 2003 Regulations and thereafter, Circular No.02/2012 derives its power and authority entirely and exclusively from the 2003 Regulations. Apart from reiterating that the approval of the Central Government and placing of the 2003 Regulations before the Parliament were the essential and mandatory conditions prescribed under the Airport Authority of India Act for the formulation of any regulations by the petitioner, which had not been complied with and it was also submitted on behalf of the respondent that in framing the 2003 Regulations the requisite notice under Section 9A of the ID Act, 1947 was required to be served on the workmen as a mandatory condition since the same amounted to a change in service conditions and thus, the regulations formulated without the due procedure laid down by Airports Authority of India Act, 1994 and the ID Act,1947 were bad in law and therefore legally invalid.

40. Inter alia the respondent submitted that the petitioner had violated the terms of Section 4 and 5 of the Industrial Employment (Standing Orders) Act, 1946 which were applicable to the petitioner. The respondent further submitted that no opportunity of hearing was given to the Union or the workmen before formulation of the provision of the premature retirement or the change in conditions of service which apart from violating the mandatory provisions of the Airports Authority of India Act, 1994 and the ID Act, 1947 also violated the principles of natural justice and fair play. It was further submitted on behalf of the respondent that the premature retirement is certainly a condition of service that is detrimental to the fate of service of the workmen and before introducing any such condition of service, the petitioner was required to have afforded an opportunity of hearing to the workmen. The respondent has further submitted that the petitioner appeared only twice before the learned Tribunal and therefore stopped pursuing its case and thus the petitioner cannot be allowed to take benefit from its own lack of representation in ID NO. 39/2014.

41. Inter alia the respondent has further submitted that the learned Tribunal had rightly observed that there was no document on record to show that the 2003 Regulations were approved by the Central Government and that the 2003 Regulations were tabled before each House of Parliament and further submitted that even now in the present petition the petitioner has still not placed any document on record to show that the 2003 Regulations were in fact approved by the Central Government and were laid before each House of Parliament and that the petitioner had made only made bald averments regarding the approval by the Central Government and the placing of the 2003 Regulations before each House of the Parliament.

42. It was further submitted on behalf of the respondent that even if it was accepted that the petitioner had placed the 2003 Regulations before the Rajya Sabha, the same does not fulfill the requirement of law of placing of the Regulations before each House of Parliament and thus the petitioner has sought to circumvent the system of checks and balances provided in law in passing of the 2003 Regulations and had violated the due process and procedure of law and thus the learned Tribunal had correctly held that the 2003 Regulations were illegal and not binding on the workmen.

43. The respondent further submitted that the averments made in the petition that the terms and conditions of the service of employees of the petitioner as per the 2003 Regulations were approved by the Board of the petitioner on 31.03.1997 were erroneous and false and that the office order dated 31.03.1997 itself indicated that no Regulations were formulated in the year 1997 and that the petitioner had declared that the employees would be governed by the same terms and conditions of the service as they were governed by when they were employees of the International Airports Authority of India and National Airports Authority. The respondent has further submitted that the Ministry of Law has never referred to the 2003 Regulations in the letter dated 03.04.1997 and that the respondent and its workmen had no access to the 2003 Regulations to enable them to raise any objection and no notice of the change in service conditions as mandatory in the Industrial Disputes Act, 1947 was issued to them. The respondent has further submitted that the reliance was rightly placed by the learned Tribunal on the verdicts U.P. State Electricity Board & Another Vs. Hari Shankar Jain & Others, M/s Tata Iron & Steel Co Ltd. v. the Workmen and the Karnal Co-operative Sugar Mills Ltd. v. the Labour Court & Others and the respondent thus sought the dismissal of the writ petition and sought that the impugned award dated 08.12.2016 of the learned Tribunal in ID No.39/2014 be upheld.

44. The petitioner through its rejoinder to the counter affidavit of the respondent reiterated the averments made in the petition and submitted that the learned Tribunal vide the impugned award had exceeded its jurisdiction and that it ought to have been confined itself to the reference made and ought not to have travelled beyond the same as laid down in National Engineering Industry Vs. State of Rajasthan, AIR 2000SC 469, and as the petitioner submitted that the Remuneration of Employees) Regulations, 2003, were notified after following the due procedure of law and submitted that there was no violation of the provision of the Industrial Disputes Act, 1947 and the contention of the respondent that the 2003 Regulations were not notified or tabled before the Parliament was a wrong statement and further submitted that the respondent is not a recognized union at present. It was submitted by the petitioner that the 2003 Regulations were tabled in Parliament and got the approval of the Central Government and evidence in this regard was placed on record and that the Gazette notification was prepared as per the instruction of the Ministry of Civil Aviation and further submitted that without taking the approval from the Central Government or without being tabled before the Parliament, the Regulations could not have been notified.

45. Inter alia through the written synopsis submitted by the respondent it was contended that the submissions made through the counter affidavit submitted on behalf of the respondent were reiterated with it having already been submitted that ID Act did not prescribe any period of limitation for workmen to raise any dispute and that the principle of delay and laches cannot be used to sustain manifest illegality and that the petitioner's non-compliance with the mandatory requirements under the Industrial Disputes Act, 1947 and Airport Authority of India Act, 1994 clearly constituted such manifest illegality.

46. Written submissions have been submitted on behalf of either side and oral arguments were advanced.

47. The petitioner through its written submissions reiterates the contention raised that the learned Tribunal could not have declared the Regulations of 2003, to be illegal as the same was not within its province in terms of the verdict of this Court in D.T.C. Mazdoor Congress (Regd.) and Ors. V. Union of India & Anr.: ILR (1986) 1 DEL-158, and it is submitted that the word incident and "incidental issue" can never be a substantive issue like validity of a statute and reliance in relation thereto was placed on the verdict of the Hon‟ble Supreme Court in Delhi Cloth & General Mills Co Ltd vs Workmen: AIR 1967 SC 469, it was thus contended on behalf of the petitioner to the effect: ―"21....the Tribunal must confine its adjudication to the points of dispute referred and matters incidental thereto. In other words, the Tribunal is not free to enlarge the scope of the dispute referred to it but must confine its attention to the points specifically mentioned and anything which is incidental thereto. The word 'incidental' means according to Webster's New World Dictionary: "happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated:" "Something incidental to a dispute" must therefore mean something happening as a result of or; in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct."‖

48. Reliance was also placed on behalf of the respondent through its written submissions on the verdict of the Hon‟ble Supreme Court in L. Chandrakumar v. Union of India & Others: (1997) 3 SCO 261 with observations in para 99 thereof which reads to the effect: "99...The Tribunals created under Article 323-A and Article 323-B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules... It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned.” (Emphasis supplied)

49. On behalf of the respondent, it has also been contended that the Industrial Disputes Act, 1947 does not prescribe any period of limitation for the workman to raise a labour dispute and that the principle of delay and laches cannot be used to sustain manifest illegality and that the petitioner‟s non-compliance with mandatory requirements under the Industrial Disputes Act and Airports Authority India, Act, 1994 constitutes such manifest illegality concealing atleast three such office orders. It has thus been submitted on behalf of the respondent that despite there being no stay of the operation of the impugned award, such orders passed by the petitioner were apparent to bring forth that the petitioner had not come to the Court with clean hands and reliance was thus placed on behalf respondent on the verdict of the Supreme Court in Ramjas of Division Bench of this Court in Sripal v. South Delhi Municipal Corporation & Ors.: 242 (2017) DLT 482, wherein it is observed to the effect:- “ 14. The principle that a person who does not come to the court with clean hands is not entitled to be heard on the merits of his grievance and, in any case, such person is not entitled to any relief is applicable not only to the petitions filed under Articles 32,226, and 136 but also to the cases instituted in other courts and judicial forums. The object underlying the principle is that every court is not only entitled but is duty bound to protect itself from unscrupulous litigants who do not have any respect for truth and who try to pollute the stream of justice by restoring to falsehood or by making misstatement or by suppressing facts which have bearing on adjudication of issue(s) arising in the case.”

50. On a consideration of the entire available record and rival submissions made on behalf of either side, it is apparent that Section 9A of the Industrial Disputes Act, 1947 has not been complied with in the instant case by the petitioner before bringing in the condition of compulsory pre-mature retirement on attaining the age of 50 years in the event an employee was considered to be: a) Inefficient or; b) On doubtful integrity or on c) Was medically unfit, even if they were to be so retired following the due process of law.

51. Thus the impugned award dated 8.12.2016 passed by the CGITcum-Labour Court, Karkardooma has correctly answered the reference to the effect that as no notice was given in terms of Section 9-A of the Industrial Disputes Act, 1947, the change in service conditions by incorporation of the term of compulsory retirement of employees on the basis of the Airports Authority of India‟s circular No.02/2012 was illegal and that it was not legally binding on the workmen in as much as read with Section 18(7) of the Airports Authority India, Act, 1994.

52. As regards the contention that has been raised on behalf of the petitioner that the impugned award held the Airports Authority India (General Conditions of Service and Remuneration of Employees) Regulations, 2003 illegal and that it was not within the province of the learned Tribunal to so determine the vires of the same, it is essential to observe that the Clause 12 of the said document i.e. Airports Authority Employees) Regulations, 2003 had to be analyzed by the learned Tribunal in as much as it dealt with the superannuation and retirement of employees and formed part and parcel of the Airports Authority Employees) Regulations, 2003. Thus the legality of the said Regulations of 2003 had essentially and incidentally in terms of Section 10 (4) of the Industrial Disputes Act, 1947 to be looked into by the learned Tribunal concerned and it could thus not be contended on behalf of the petitioner that it was not within the jurisdiction of the learned Tribunal to adjudicate thus on the legality of the said Regulations of 2003.

53. As regards the contention that has been raised on behalf of the petitioner that the findings of the learned Tribunal to the effect that the circular No.02/2012 was directly published in the Official Gazette in contravention of the provisions of Section 42(4) of Airports Authority India, Act, 1994 without obtaining approval from the Central Government was erroneous, it is essential to observe that Section 42(4) of the Airports Authority of India, Act, 1994 already reproduced elsewhere hereinabove categorically provides that no regulation made by the Airports Authority of India in terms of the said enactment could have any effect unless it had been approved by the Central Government and published in Official Gazette. The said regulations of the Airports Authority of India are indicated to have been published in the Gazette (Extraordinay) on 23.05.2003 vide notification F. No.AAI/PERS/EDPA/Reg./2002 as issued by the Ministry of Civil Aviation and as per Clause 2 thereof were to come into force on the date of their publication in the official Gazette i.e. 23.05.2003.

54. However, Section 43 of the said enactment i.e. Airports Authority India, Act, 1994, is also categorical that every rule and regulation made under the said enactment is to be mandatorily laid, as soon as it may be made after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be but that, however, any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or regulation.

55. The contention that was raised on behalf of the respondent was categorical to the effect that these regulations were not placed before the each House of the Parliament and did not get its approval and thus has not appropriately been framed and published in the Official Gazette in terms of Section 44(4) of the Airports Authority India, Act,

1994.

56. Undoubtedly, the petitioner has sought to contend that there has been no violation of any mandatory provisions of the Airports Authority of India, Act, 1994 and has chosen to put forth that the said rules had been taken up by the Rajya Sabha on 19.8.2003, but as rightly contended on behalf of the respondent, there is not an iota of a document placed on record to show that the said Regulations were placed before the Lok Sabha for its approval. Thus the mere contention raised on behalf of the respondent that the said Regulations had been so placed in the Lok Sabha and had got the approval of the Lok Sabha cannot be accepted.

57. The Court has taken into consideration the verdict of the Hon‟ble Supreme Court in Veneet Agarwal Vs. Union of India & Ors. in Appeal (Civil) No. 2565/2005, a judgment dated 31.10.2007, where Section 31 of the Securities and Exchange Board of India Act, 1992 was under consideration and the observations therein that the said Section 31 thereof which reads to the effect that:

5. Annual Return of Assets and Liabilities Reg. 10(d): “Every employee shall, on his first appointment in the Authority, furnish an annual return of assets and liabilities in the form This requirement was introduced by the 2003 regulations. prescribed as specified by the Authority from time to time giving the full particulars.

6. Transfers Reg. 15: Although 1980 Regulations state that an employee shall be liable to be transferred anywhere in India or abroad, it also states that “Group C & D employees, will however, not normally be transferred to another station against their will.” Reg. 7: Every employee in the service of the Authority shall be liable to be transferred in any part of the country or abroad. The distinction between the Group C & D employees from the other employees has been removed, and all employees have been made subject to this requirement.

7. Deputation Reg. 21: “ Employees …. may be sent on deputation…with the prior approval of the Chairman. The Deputation of such employee shall be governed by the terms to be mutually agreed upon between the Authority and the borrowing organization.‖ Reg. 8 states that any employee sent on deputation shall be governed by the 2003 Regulations and shall be given benefits under 2003 Regulations. No benefits are specified under the 2003 Regulations, leaving the Authority with the discretion to determine the same.

8. Discharge during probation Reg. 12(2): ―During the period of probation an employee directly recruited shall be liable to be Reg. 10(2): “During the period of probation, an employee directly recruited shall be liable to be Regulations specified that the employee under probation shall be discharged if his performance is not found satisfactory or upto standard‖ discharged from service without notice if his/ her performance is not found satisfactory or upto standard‖ discharged without any requirement of receiving notice.

9. Discharge & Termination of Service Reg. 23(b): Any employee on probation shall be given 7 days notice before termination. Reg. 23(c): Appointment of a temporary employee shall be terminated by giving him/her 24 hours notice in writing or pay in lieu of notice. Reg. 23 (c): The power of „discharge simplicitor‟ will be exercised only by the Chairman. Reg. 10(2): No notice before the termination of employee on probation. Reg. 11(b): Appointment of an employee against temporary post shall be terminated automatically on the expiry of the specific period for which the post was sanctioned or he/she was appointed. Reg. 11(3): The power of „discharge simplicitor‟ shall be exercised by Chairperson or Appointing Authority. Termination and discharge of service under each category has been made much easier, by vesting the Authority with wider powers.

10. Compulsory Retirement No provision of compulsory premature retirement for workmen. Reg. 12(5): “Any employee, who has attained the age of 50 years and is considered to be –

(i) inefficient, or (ii)

(iii) medically unfit, may be prematurely retired by the competent authority…‖

11. Hours of Work & Attendance - Reg. 19: “(1) Every employee shall The new Regulation comply with all instruction issued from time to time relating to attendance, arrival and departure, the period and hours of work for different categories of employees or to an employee and every employee shall be at work at the time fixed and specified by the Authority from time to time.‖ does not mention any procedure/guid elines, etc. Instead, it vests the Authority with a blanket, discretionary power to issue any instructions whatsoever regarding hours of work and attendance.

12. Attendance Reg. 20: “Attendance shall be marked daily according to the method and procedure as may be specified by the authority from time to time.‖ The new Regulation does not mention any procedure/guid elines, etc. Instead, it vests the Authority with a blanket, discretionary power to decide any procedure at any time.

13. Miscellaneous Items Appointments, Methods of Recruitment, Types of Recruitment, Creation of Posts, Seniority, Fixation of Seniority, Reservation, Direct Recruitment, Liability for Defence Service, Departmental Promotion, Joining Time, Allowances and Advances, Pay on First Reg. 24: “Compliance of other instructions issued by the Authority- Every employee shall comply with such other instructions as may be issued by the Authority from time to time. This Regulation removes a number of specified rules and procedures under the 1980 Regulations, and replaces them with the widest possible blanket, discretionary power to issue any instruction at any time. Appointment, Pay on Promotion, Pay in case of Deputationist from Central or State Department or PSUs, Pay in case of Superannuated Government Servants reemployed in the Authority, Increments, Ex. Gratia Grant.

60. Thus as the requisite mandatory procedure of checks and balances incorporated under Section 43 of the Airports Authority India, Act, 1994 had not been complied with by the petitioner and it is apparent that there is no merit in the petition and that there is no merit in the prayer made by the petitioner.

61. The petition and the accompanying applications CM Appl. Nos. 23073/2017, 46221/2017 and 12940/2018 are thus dismissed. ANU MALHOTRA, J. NOVEMBER 01, 2018 SV/vm/NC